Enviros Push to End Trump Water Rule

Corps Flooded With Clean Water Act Determination Requests Ahead of Rewrite

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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The South Carolina Coastal Conservation League asked a federal court to vacate the Navigable Waters Protection Rule. (Photo by Joe Mac Hudspeth)

LINCOLN, Neb. (DTN) -- Environmental groups continue to push a federal court to vacate the Trump Navigable Waters Protection Rule even as the Biden administration is asking a federal court to remand the rule to the EPA and U.S. Army Corps of Engineers for a rewrite.

The South Carolina Coastal Conservation League told the U.S. District Court for the District of South Carolina in Charleston in a motion on Monday that the group opposes leaving the current water rule in place during a rewrite.

The Biden administration has been asking various federal courts to end ongoing lawsuits because the administration does not support the current rule. If a remand is granted to EPA, the Trump rule would stay in place during a reworking of the rule. Vacating the rule would revert back to the 2015 waters of the United States, or WOTUS, rule.

In a motion opposing EPA's requested remand, the group said there were no guarantees a Biden rewrite of the rule would protect waters.

Agriculture interest groups support the current rule because, in their view, it simplified questions of Clean Water Act jurisdiction farmers face on their land. Ag groups fought the 2015 WOTUS rule on the basis it expanded the federal government's authority on private land.

"The agencies' anticipated revision of the rule -- a process of undefined duration and uncertain outcome -- does nothing to prevent the rule's (Trump rule) harmful effects on the nation's waters during what is likely to be a lengthy rulemaking period," the South Carolina Coastal Conservation League said in its motion.

"These harms, combined with the seriousness of the rule's deficiencies, indicate under established precedent that remand to the agencies is inappropriate unless the court also vacates the rule. On the merits, the agencies, by failing to oppose plaintiffs' motion for summary judgment, concede that the rule is arbitrary, capricious, and unlawful under the Administrative Procedure Act and the Clean Water Act."

The Corps of Engineers has been fielding many requests for determinations ahead of a rewrite of the rule, the group told the court on Monday, as time runs out on the Navigable Waters Protection Rule.

"The Corps has been flooded with requests to obtain 'approved jurisdictional determinations' securing the right to pollute or fill newly excluded streams and wetlands, free of the Clean Water Act's permitting protections," the South Carolina Coastal Conservation League said.

"Applying the rule's restrictive definition of 'waters of the United States,' the Corps has found 92% of waters evaluated to be outside the protections of the Clean Water Act -- a dramatic increase in comparison to prior regulatory regimes, under which less than 56% of waters were found not to be jurisdictional."

The group said the "resulting threat of degradation" of waters "harms plaintiffs and their members who depend on threatened waters across the country for drinking, swimming, boating, fishing, and their livelihoods."

The South Carolina Coastal Conservation League originally filed a motion for summary judgment in the case back in May. The group alleged in its lawsuit filed in April 2020 that the EPA and the U.S. Army Corps of Engineers completed the rule based on "political winds and currents."

Agriculture, petroleum and other interest groups intervened in the case, including the American Farm Bureau Federation, American Petroleum Institute, National Cattlemen's Beef Association, National Corn Growers Association, National Pork Producers Council and U.S. Poultry and Egg Association, among others.

In June, the EPA announced it was rewriting the Navigable Waters Protection Rule because it left waters without protections in certain parts of the country.

EPA Administrator Michael Regan said in a June 9 news statement the Trump rule -- widely supported by agriculture interests -- is "leading to significant environmental degradation."

The agency pointed to "lack of protections" in arid states like New Mexico and Arizona, "where nearly every one of over 1,500 streams assessed has been found to be non-jurisdictional. The agencies are also aware of 333 projects that would have required Section 404 permitting prior to the Navigable Waters Protection Rule, but no longer do."

Read more DTN coverage:

"Court Asked to Vacate Trump Water Rule," https://www.dtnpf.com/…

"EPA to Rewrite Trump Clean Water Rule," https://www.dtnpf.com/…

"Lawsuit Aims at New Water Rule," https://www.dtnpf.com/…

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

Follow him on Twitter @DTNeeley

Todd Neeley