New Water Rule to Face Legal Challenge

Conservation, Enviro Groups Point to Loss of Protection in Western Watersheds

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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The Trump administration's new Navigable Waters Protection rule may soon face its first legal challenge. (DTN file photo)

OMAHA (DTN) -- The first of what may be numerous legal challenges to the Trump administration's new water rule is expected to be filed within 60 days, a number of conservation and environmental groups announced in an intent-to-sue notice to the EPA and the U.S. Army Corps of Engineers last Thursday.

The administration finalized the much-anticipated redefinition of waters of the United States on Jan. 23, 2020, in what the groups planning to file a lawsuit said violated the Endangered Species Act.

Read the new water rule here: https://www.dtnpf.com/…

Peeling back from the 2015 rule the EPA and the Corps seek to replace, the Navigable Waters Protection Rule scraps terms such as "significant nexus" and spells out four specific categories of waterways that will be regulated by the federal government, leaving oversight for other bodies of water to states and tribes.

In the notice of intent to sue, the groups outline how the final rule, yet to be published in the Federal Register, violates the Endangered Species Act by "taking an action that may affect ESA-listed species without having first engaged in mandatory consultation under the ESA."

The notice was filed by the Center for Biological Diversity, Waterkeeper Alliance, Center for Food Safety, Turtle Island Restoration Network, as well as several other environmental groups.

Once an intent-to-sue notice is received, EPA has 60 days to come into compliance with the ESA.

The groups include a map in the notice showing watersheds primarily in the West that lose Clean Water Act protection, including nearly the entire states of Nevada, Arizona and New Mexico, half of California and about one-third of Oregon.

The groups said they used "documents leaked by EPA career staff" and their own analysis to identify the loss of Clean Water Act protections in the West.

"In the 2020 dirty water rule, EPA is constricting its interpretation of the definition of 'waters of the United States' to categorically exclude ephemeral waters, all groundwater, groundwater recharge structures," the notice said, "and non-adjacent wetlands (as broadly defined in the rule), as well as other waterbodies that don't meet the agencies' narrowed definition of 'waters of the United States.'

"As detailed in conservation groups' public comments to EPA on the rule, under this narrow interpretation, millions of acres of rivers, streams, lakes, wetlands, impoundments and other waterbodies will now be excluded from CWA jurisdictional protections," the notice also said.

The groups said waters losing protection in the final rule support habitats for "a large number" of endangered and threatened species across the country.

ESA EVALUATION NOT COMPLETED

"Yet, despite the significant anticipated effects from such a widespread reduction of CWA jurisdictional protections to aquatic ecosystems and the many threatened or endangered species that depend upon them," the groups said, "EPA did not even attempt to identify, quantify, or otherwise consider the adverse impacts to these species prior to finalizing the rulemaking."

In the process of finalizing the rule, the groups allege the federal agencies failed to make a no-effect determination as it relates to the ESA.

"EPA has failed to ensure that its actions will not jeopardize the continued existence of already-imperiled species," the groups said.

In particular, the notice argues the rule removes protections for non-adjacent wetlands across the country "which provide crucial habitat for dozens, if not hundreds, of federally-listed threatened and endangered species."

They said the new rule results in about 93% of Arizona's stream miles, losing Clean Water Act protections.

"By ignoring overwhelming scientific consensus and removing such a significant portion of otherwise jurisdictional rivers, streams, lakes, wetlands and other waterways from the CWA's definition of waters of the United States," the groups said, "EPA has removed from itself and citizens any meaningful ability to protect federal waterways."

The groups said the rule removes protections for hundreds of endangered species including the Chiricahua leopard frog, Chinook salmon and southwestern willow flycatcher.

"This reverses more than 40 years of progress and settled law," said Kelly Hunter Foster, senior attorney at Waterkeeper Alliance.

"Because the rule establishes arbitrary categories of protected waters, EPA and the Army Corps do not have the data necessary to fully identify the waters that will lose protection, and they haven't even assessed the impacts of leaving these waters unprotected where adequate data is available. Their actions are not only reckless -- they are illegal."

TRUMP ACTIONS

In his first days after taking office, President Donald Trump ordered EPA and Corps of Engineers to repeal and replace the 2015 rule. Last October, EPA and the Corps finalized the repeal of the 2015 rule.

Under the new rule, traditional regulated bodies such as territorial seas and major rivers will fall under federal rules, as well as "perennial and intermittent tributaries" and certain lakes and ponds and impoundments that contribute to the flow of a navigable waterway, along with wetlands "adjacent to jurisdictional waters."

Adjacent wetlands are those touching a traditional navigable water, such as a wetland next to the Mississippi River, or a wetland that may be physically separated by only a single natural feature such as a berm. A wetland behind a levee could fall under regulation, an EPA official said.

Farm and stock watering pounds and artificial lakes will not be regulated, nor will prior converted croplands or wetlands that are not near a jurisdictional water body. But the defining legal issue will be the difference between a federally regulated "intermittent" stream and a state or locally regulated "ephemeral" stream.

Read the notice of intent to sue here: https://waterkeeper.org/…

Todd Neeley can be reached at todd.neeley@dtn.com

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(BAS/CZ)

Todd Neeley