#CleanWaterRules: The law that no one loved — Boulder Weekly

From the Boulder Weekly (Angela K. Davis):

On Oct. 9, the U.S. Court of Appeals for the Sixth Circuit issued a stay for the Clean Water Rule, which seeks to clarify protection of the country’s streams and wetlands under the Clean Water Act. The stay halts implementation of the regulation, also known as the Waters of the U.S. (WOTUS) rule, across the country. This ruling follows an earlier injunction by a district judge in North Dakota that prevented the implementation of the regulation in Colorado and 12 other litigating states, which claim the regulation is federal overreach into states’ authority.

The WOTUS rule seeks to clarify which types of bodies of water are protected under the Clean Water Act following two Supreme Court cases earlier this century that called into question the protection of streams and wetlands. The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers, the two agencies that developed the rule, state that one in three Americans get their drinking water from streams, and both streams and wetlands are the foundations of clean water in the U.S.

The two agencies issued the final WOTUS ruling in June of 2015, despite earlier internal memos wherein the U.S. Army Corps of Engineers challenged changes made between the draft rule and final rule. “If the rule is promulgated as final without correcting those flaws it will be legally vulnerable, difficult to defend in court, difficult for the Corps to explain or justify, and challenging for the Corps to implement,” one memo states.

As predicted, the final rule, which was to take effect Aug. 28, was immediately met with litigation from both sides of the political spectrum. Colorado Attorney General, Cynthia Coffman, joined other states in filing suit, which resulted in the August injunction. The ruling on Oct. 9 follows the previous ruling by halting the implementation of the regulation in all states until a federal judge can decide whether or not the rule is in fact federal overreach.

“The attorney general of Colorado and other states have believed that there needs to be clarification in the courts of what the EPA’s actual reach into a state’s natural resources is or should be,” says Roger Hudson, chief communications director for the Colorado Attorney General. “If WOTUS happens, we believe it violates the provision of the Clean Water Act and overreaches into the state of Colorado. The Attorney General’s assertion is that Coloradans should decide how to use and maintain and keep pristine the natural resources of Colorado, not a federal agency.”

Not only did states challenge the rule, but environmental and conservation groups filed lawsuit in July stating the WOTUS rule was too weak and could actually provide less protection than the original 1972 Clean Water Act.

Nonprofit organizations, including Waterkeeper’s Alliance and the Center for Biological Diversity, challenge the rule stating that it would have “adverse impacts” on the “use, enjoyment and preservation of the waters of the United States.” The organizations maintain the rule weakens protection of certain streams, wetlands and ponds that are either too far from larger streams and rivers, or too close to bodies of water used for agriculture and ranching.

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