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Groups Challenge Clean Water Act Revision

Wetlands at Hubert Bypass Park in Onslow County. Photo: NC Wetlands/N.andC. Division of Water Resources

More than a dozen environmental and conservation groups have filed in federal court a challenge to the Trump administration’s recent rule redefining waters subject to regulation under the Clean Water Act, saying the change leaves many waterways unprotected.

The Southern Environmental Law Center filed on behalf of the groups Wednesday a lawsuit in the U.S. District Court for the District of South Carolina over the Trump administration’s “effort to gut clean water protections from wetlands and streams that feed drinking-water sources for 200 million Americans and 32 million people in the South, or seven out of ten Southerners.”

The Environmental Protection Agency and the Department of the Army published April 21 in the Federal Register the final replacement rule defining what waters are federally regulated under the Clean Water Act. The rule, which is set to take effect June 22, had been met with both support and promises of legal action.

The EPA and Department of the Army have 60 days to respond to the lawsuit.

The groups that joined in the legal challenge include the North Carolina Coastal Federation, which publishes Coastal Review Online, along with American Rivers, Charleston Waterkeeper, Chattahoochee Riverkeeper, Clean Water Action, Defenders of Wildlife, Environment America, Friends of the Rappahannock, James River Association, National Wildlife Federation, North Carolina Wildlife Federation, Public Employees for Environmental Responsibility, Roanoke River Basin Association and South Carolina Coastal Conservation League.

“We are particularly concerned that many wetlands along our coast will no longer be regulated by the federal government,” said Todd Miller, executive director of the Coastal Federation.

“These areas include pocosins, Carolina Bays and other forested wetlands. These wetlands protect water quality in our coastal estuaries and reduce floods during storms. Current wetland rules, that have been in place for decades, balance the needs of landowners with these environmental and economic benefits,” he continued. “Losing this oversight by adoption of these new rules will result in more water pollution, less fish, and more costly disasters in coming years.”

“You don’t have to be a rocket scientist to know that pollution dumped upstream flows downstream, but the agencies shut their eyes to science and common sense.”

— Blan Holman, Southern Environmental Law Center

Blan Holman, senior attorney and leader of the law center’s Clean Water Defense Initiative, said all families and communities across the country rely on clean water, but the EPA and Department of the Army ignored that to enable unlimited water pollution across the nation.

“This unlawful rule puts the water used by hundreds of millions of Americans for drinking, bathing, fishing, and business at risk as well as countless communities that deal with floods and hurricanes,” he added. “You don’t have to be a rocket scientist to know that pollution dumped upstream flows downstream, but the agencies shut their eyes to science and common sense. That violation of the law is why we’re going to court to protect clean water.”

The administration’s Navigable Waters Protection Rule is the second step in revising the definition of the scope of waters subject to federal regulation under the Clean Water Act and repeals the 2015 Clean Water Rule: Definition of “Waters of the United States,” often called “WOTUS.” The final rule “recognizes that waters of the United States are those within the ordinary meaning of the term, such as oceans, rivers, streams, lakes, ponds, and wetlands, and that not all waters are waters of the United States,” according to the April 21 document.

The final rule specifically states that waters of the United States do not include groundwater; ephemeral, or impermanent, streams, swales, gullies, rills and pools made by rain; diffuse stormwater runoff, which is rainwater that spreads across the landscape, and features that control stormwater; previously converted croplands; ditches that are not traditional navigable waters, tributaries, or that are not constructed in adjacent wetlands; and other exclusions.

Committee on Transportation and Infrastructure Ranking Member Rep. Sam Graves, R-Mo., and Subcommittee on Water Resources and Environment Ranking Member Rep. Bruce Westerman, R-Ark., released a joint statement last week commending the final rule.

“The President has kept his commitment to farmers, small business owners, and communities in North Missouri and across the country by replacing the excessive and burdensome Obama-era Waters of the United States rule.”

— Rep. Sam Graves, Ranking Member, Committee on Transportation and Infrastructure

“The President has kept his commitment to farmers, small business owners, and communities in North Missouri and across the country by replacing the excessive and burdensome Obama-era Waters of the United States rule,” said Graves in the April 21 statement. “The new Navigable Waters Protection Rule respects the rights of states and individuals, and it couldn’t come at a better time. While state and local governments and businesses across the country struggle from the economic fallout from the COVID-19 pandemic, what we need is more certainty and less burdensome regulations from Washington. The President has delivered that as promised.”

Westerman added, “I’m pleased to see the Administration taking this long-overdue step to define and clarify the Clean Water Act. The whole purpose of regulations is to provide narrowly-focused, limited guidance to farmers, industries, and communities. By clearly defining what falls under Clean Water Act protection and what doesn’t, we’ll better equip farmers to know how to manage their property while still protecting endangered species and ecosystems.”

American Farm Bureau Federation Farm Bureau President Zippy Duvall said in a statement that the AFBF supports the Navigable Waters Protection Rule.

“Farmers and ranchers care about clean water and preserving the land, which are essential to producing healthy food and fiber and ensuring future generations can do the same,” Duvall said.

The lawsuit filed Wednesday contends that the rule is contrary to the Clean Water Act’s central aim to protect America’s waterways and ignores both basic science and the intent of the Clean Water Act, which a bipartisan Congress passed in 1972.

“The repeal of Clean Water Act protections would put North Carolina’s water resources at risk by removing protections from smaller headwater streams and tributaries, and would undermine our state’s resiliency during flooding events by eliminating protections on millions of acres of wetlands that safeguard our communities,” said Tim Gestwicki, CEO of the North Carolina Wildlife Federation.

“As North Carolina continues to rebuild from the past two years of hurricanes and historic flooding, the rollback repeals are especially egregious. We need restored wetlands, streams, and floodplains, not less protections,” added Gestwicki. “Wildlife need clean water and hunters and anglers know that without it, there won’t be ducks to hunt or fish to catch. Folks who love our streams, rivers, and wetlands deserve better, which is why this grievous repeal must be fought in court.”

The lawsuit also contends that the agencies failed to give details or assess the impact of these rule changes on the nation’s water quality or give the public “a meaningful opportunity to comment on the elimination of scientifically-based protections for streams and wetlands,” according to the law center.

Agencies received more than 600,000 comments from across the country opposing the changes to the Clean Water Act, the law center noted.

“This rule effectively guts the Clean Water Act by permanently removing protections for approximately half the nation’s streams and wetlands,” said Jim Murphy, director of legal advocacy for the National Wildlife Federation.

“It should be shocking, but it isn’t, that the EPA did not examine the impacts of this rule on water quality or public health,” he continued. “The agency has openly admitted it did not do a substantive analysis of which streams and wetlands would lose protections and which pollution permits would be invalidated as a result. We think the courts will agree that federal rules should be based on sound science and that this one is not.”

About the Author

Jennifer Allen

Born and raised in Swansboro, Jennifer Allen graduated from Appalachian State University in 2002 and picked up a second degree from UNC-Charlotte the following year. She joined the staff of the Carteret County News-Times in Morehead City in 2005 and completed her master's at UNC-Wilmington in 2008. Jenn spent nine years writing and editing at the News-Times before joining the staff at the Town of Beaufort in 2014, where she served as public information officer and town clerk. On June 1, 2017, Jenn came aboard as assistant editor for Coastal Review Online. She has also written for Our State Magazine and other regional and statewide publications. She lives in Morehead City with her fiancé and their pups, Z, Gus and Willa.