The new Clean Water Rule, which took effect (or not, depending which state you’re in) last Friday, is now facing opposition from several directions. On Thursday, August 27, a day before the rule went into effect, a federal judge in North Dakota issued a temporary injunction against it. The injunction applies to 13 states (Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming) that had sued to block the rule.
Also on Thursday, a federal judge in Georgia rejected a similar request from 11 different states that were also seeking to block the rule. As of now, in all but the 13 states covered by the North Dakota judge’s injunction, the rule is being enforced. But more than half the states in the US have so far filed some sort of protest against the rule, and other lawsuits are pending.
The new Clean Water Rule, which took effect (or not, depending which state you’re in) last Friday, is now facing opposition from several directions. On Thursday, August 27, a day before the rule went into effect, a federal judge in North Dakota issued a temporary injunction against it. The injunction applies to 13 states (Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming) that had sued to block the rule. Also on Thursday, a federal judge in Georgia rejected a similar request from 11 different states that were also seeking to block the rule. As of now, in all but the 13 states covered by the North Dakota judge’s injunction, the rule is being enforced. But more than half the states in the US have so far filed some sort of protest against the rule, and other lawsuits are pending. [text_ad] There are also legislative actions against it. According to some US senators, the new rule is the number-one issue their agricultural constituents bring up. Both houses of Congress have bills in various stages of progress to block or rewrite the rule, and the Senate bill, at least, has bipartisan support. The Background EPA and the Army Corps of engineers proposed the new rule last year largely in response to two “confusing” Supreme Court decisions that, they said, had weakened the Clean Water Act and left ambiguity about exactly what’s covered. Those decisions—Solid Waste Agency of Northern Cook County v. US Army Corps of Engineers in 2001 and Rapanos v. United States in 2006—limited authority over some non-navigable waters, wetlands, and intermittent streams, which in some cases are tributaries to larger water bodies. EPA has argued that these decisions left up to 60% of the nation’s streams and wetlands potentially unprotected. Both EPA and the Corps of Engineers have stressed that the new rule does not actually extend the reach of the Clean Water Act, but merely clarifies what’s covered. (EPA’s webpage explaining the rule and what it covers is available here.) Although the rule preserves existing exemptions for agriculture, there has been tremendous protest from industry and agricultural groups. These groups say the rule is overly broad in its scope, that it limits property owners can do on their own land, and that it seeks to regulate “every ditch”—even small drainage channels or small water bodies that are unlikely to have a downstream impact. The groups also contend that the financial burden of obtaining permits for work affecting these water bodies will be prohibitive for farmers, ranchers, and other landowners. What Next? What happens next? It will take some time for all the suits to work their way through the court system, and ultimately one or more may end up once again with the Supreme Court. We’re opening it up for comments, to our readers here and on the Stormwater magazine website, to weigh in on how you think things might develop. Do you think it’s possible that—depending on the outcomes—these ongoing challenges could weaken the Clean Water Act even more than if EPA and the Corps of Engineers had not proposed the new rule in the first place? Do you think the new rule is too stringent—or that it doesn’t go far enough? What could EPA and the Corps have done differently, if anything, to make a stronger case for it?
There are also legislative actions against it. According to some US senators, the new rule is the number-one issue their agricultural constituents bring up. Both houses of Congress have bills in various stages of progress to block or rewrite the rule, and the Senate bill, at least, has bipartisan support.
The Background
EPA and the Army Corps of engineers proposed the new rule last year largely in response to two “confusing” Supreme Court decisions that, they said, had weakened the Clean Water Act and left ambiguity about exactly what’s covered. Those decisions—Solid Waste Agency of Northern Cook County v. US Army Corps of Engineers in 2001 and Rapanos v. United States in 2006—limited authority over some non-navigable waters, wetlands, and intermittent streams, which in some cases are tributaries to larger water bodies. EPA has argued that these decisions left up to 60% of the nation’s streams and wetlands potentially unprotected.
Both EPA and the Corps of Engineers have stressed that the new rule does not actually extend the reach of the Clean Water Act, but merely clarifies what’s covered. (EPA’s webpage explaining the rule and what it covers is available here.) Although the rule preserves existing exemptions for agriculture, there has been tremendous protest from industry and agricultural groups. These groups say the rule is overly broad in its scope, that it limits property owners can do on their own land, and that it seeks to regulate “every ditch”—even small drainage channels or small water bodies that are unlikely to have a downstream impact. The groups also contend that the financial burden of obtaining permits for work affecting these water bodies will be prohibitive for farmers, ranchers, and other landowners.
What Next?
What happens next? It will take some time for all the suits to work their way through the court system, and ultimately one or more may end up once again with the Supreme Court.
We’re opening it up for comments, to our readers here and on the Stormwater magazine website, to weigh in on how you think things might develop. Do you think it’s possible that—depending on the outcomes—these ongoing challenges could weaken the Clean Water Act even more than if EPA and the Corps of Engineers had not proposed the new rule in the first place? Do you think the new rule is too stringent—or that it doesn’t go far enough? What could EPA and the Corps have done differently, if anything, to make a stronger case for it?
