Monday, August 10, 2015

EPA Clean Water Rule Supporters Have Second Thoughts, Sue EPA Instead

May, 2015: Hooray!  Courtesy of Sierra Club
On May 27, 2015, the US EPA's Clean Water Rule was finalized .  Within minutes, the brand-spanking-new 879 page guidance was called "revolutionary" and a "huge win for sportsmen."  Guess I'm just a slow reader.

My primary concerns were, and remain:

  • the new definitions of streams are arbitrary and will open up CWA to additional evisceration in federal courts
  •  for urban, suburban, and agricultural streams already damaged by human activity, the Clean Water Rule will make it difficult and extremely expensive to actually restore these degraded aquatic habitats.  US EPA watershed restoration goals will suffer mightily. 
  • the Rule claims to be science-based but provides clearly illegal exemptions for uses like mountaintop removal waste storage in trout streams (what?!)
  • the Rule claims to be science-based but exempts all existing agricultural uses from compliance, which obviously is *not* science based.  Damaging litigation will result. 
When the language was being negotiated, I discussed these concerns with a young lobbyist who was working hard to get the Rule passed.  I interpret his response as, "Wow, that's neat.  You should submit a comment to the EPA website."  Which I did, to great criticism, including a searing but woefully underinformed piece from Field and Stream's Bob Marshall, calling opponents of the Clean Water Rule "Sportsmen in Name Only - America's Greatest Threat."

July 2015:  Abort! Abort!  Courtesy: Waterkeeper Alliance
But much has changed in the last 90 days.  Robert F. Kennedy Jr.'s Waterkeeper Alliance, an initial supporter of the Clean Water Rule, is now suing the US EPA in federal court to stop the Rule's implementation.  National Wildlife Federation has also echoed concerns (after initially proclaiming that opposing the Clean Water Rule would be akin to "a vote against clean water" and that "we are particularly pleased....the process worked as it should." ).  And the Natural Resource Defense Council outwardly stated that the Clean Water Rule "will do little to protect America's fisheries" after blogging in May, "Oh, happy day! Clean Water Rule adopted!"   And the rogue's gallery of anti-regulatory organizations have filed a barrage of lawsuits to stop the Rule, which is no surprise.    I'm a bit surprised that 31 states (and counting), along with the National Association of Counties, have sued the US EPA to stop the implementation of this rule.

What's more of a surprise are the US Army Corps of Engineers memos to US EPA that were released last week, stating on the record that:

  • Unsupportable EPA positions claiming to be joint EPA-Corps decisions needed to have the Corps logo and agency name redacted because the Corps did not support the decisions made
  • The Corps has been telling US EPA for months that the Clean Water Rule would not be implementable in the field, as it is arbitrary
  • The Corps warns that the Clean Water Rule would open up the Corps and EPA to significant threat of federal litigation, due to its arbitrary language
  • The Corps memos offer assistance to EPA when EPA is "ready to proceed with logical guidance."
It's funny, when I wrote those things, I was merely a "Sportsman in Name Only".   Now apparently the 32,000 engineers, scientists, and lawyers of the US Army Corps of Engineers agree that these items are "worthy of concern."  As does the National Association of Counties.  As does the Waterkeeper Alliance.  And the National Wildlife Federation, the Attorneys General of 31 states, and the Natural Resource Defense Council.   And the uber-liberal Center for Biological Diversity.  

In our working world, it's really disappointing to watch the vaunted, veteran conservationists clap like seals when something new and shiny is proposed by the world's largest environmental regulatory agency (US EPA).  Let alone to applaud a nearly 900 page legal ruling within minutes of its public release, without having read it first.  And then, adding insult to injury, to angrily turn around and sue to stop that same legal ruling just weeks later, once they've read the fine print that critics like myself warned about so sternly.   

I'm ready to pour another cup of coffee and watch the Clean Water Rule churn through 6-8 years of federal lawsuits, ending inevitably at the US Supreme Court.   These lawsuits seek to dismiss the Rule because it is simultaneously too broad and too narrow.  Legal experts refer to that as "arbitrary," which indicates that these lawsuits will be successful in their short-term aim of disemboweling the Clean Water Rule.  

But perhaps I'm being too bold.   What do I know, as a 20 year wetland practitioner and Sportsman in Name Only?   I'll be out restoring wetlands and pulling tires out of illegal dumps.  Call me if you need me. 

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