A briskly flowing stream flows through Wyoming’s Wind River Mountains, photographed on August 9, 2009. A confusing Supreme Court decision left the Environmental Protection Agency in a legal battle with U.S. states and the American Legislative Exchange Council over the EPA’s ability to regulate small but important waterways. (Flickr / Kylir Horton)
Clean Water Act under attack!
On June 29th, thirteen states—Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming—filed a lawsuit in the 8th US Circuit Court of Appeals in Missouri, challenging certain aspects of new regulations under the Clean Water Act as issued by the Environmental Protection Agency. No sooner was that lawsuit underway than nine other states—Alabama, Florida, Georgia, Kansas, Kentucky, South Carolina, Utah, West Virginia and Wisconsin—filed a similar lawsuit against the regulations in the US District Court for the Southern District of Georgia. Ohio and Michigan promptly filed a their lawsuit against the new regulations in US District Court for the Southern District of Ohio. And now Louisiana, Mississippi and Texas have filed their suit, the fourth in this series, in Houston.
Twenty-seven states in all—even more than the current number of Republican candidates for president.
What brought this on?
In 2001 and, particularly, 2006, the US Supreme Court issued rulings on the 1972 Clean Water Act that were “confusing and complex,” particularly regarding “temporary waterways: small streams and tributaries” that come and go as a result of weather changes or other temporary conditions. Those temporary waterways account for about 60% of all US streams and “make up a large fraction of river networks” upon which some 117 million of us depend for drinking water.
In their 2006 decision, four US Supreme Court Justices ruled in favor of a restrictive interpretation of federal oversight over “remote wetlands,” four ruled in favor of federal intervention so water downstream wouldn’t be negatively affected, and one (Justice Kennedy) took his own, separate position.
As a result of this unusual and confusing Supreme Court ruling, the EPA spent several years grappling with definitions and related issues, reportedly “reviewing more than 1,000 peer-reviewed studies” and ultimately receiving over a million public comments (mostly favorable). EPA concluded that, whether constantly or only periodically flowing, head-waters (waters eventually flowing into major waterways) were properly under the EPA’s aegis. That’s the overriding issue, in a nutshell, though there are devilish details, arcane matters and other concerns (real or imagined) as well.
Activists protesting an American Legislative Exchange Council meeting hold a banner reading “ALEC: Parasitic Corporate Mafia” in Dallas, Texas on July 30, 2014. (MintPress News / Kit O’Connell)
Smells like ALEC
If states’ rights are involved in something, chances are so is ALEC (the American Legislative Exchange Council), which, following the ALEC paradigm, focuses squarely on the states. Thus, it’s interesting to compare what’s being reported about the states’ claims in the 13-state lawsuit to what’s in ALEC’s “Resolution Regarding Clean Water Act Regulations of EPA Definition of ‘Waters of the U.S.’” which was issued October 11, 2014.
States are claiming “the new rule wrongly broadens federal authority by placing a majority of water and land resources management in the hands of the federal government.” This reflects ALEC’s position that “the proposed rule provides almost unlimited [Clean Water Act] federal jurisdiction, impairs state authority” and subjects “more activities to CWA permitting requirements, National Environmental Policy Act (NEPA) analyses, mitigation requirements, and citizen suits challenging local actions based on the applicability and interpretation of new-found authorities.”
States are also claiming “the regulations will hurt farmers, developers and landowners by forcing them to seek additional federal permits or face substantial fines and federal criminal enforcement actions.” ALEC maintains that the rule will “redefine ‘waters of the U.S.’ that could significantly increase the cost and regulatory requirements of state and local governments and ultimately the costs for state and local residents and businesses.” The “greatest burden will fall on small landowners and small businesses least able to absorb the costs.” In discussions of the states’ position, we’re told that expanding the definition of “waters” from “navigable waters” under the Act “represents a vast expansion of federal oversight” that could include “roadside ditches, farm puddles, rain gardens and other currently unregulated waters.”
ALEC took a similar, though not nearly so colorfully expressed position in another document issued on October 11, 2014, the “State Constitutional ‘Water is Life Amendment.’” In that document, ALEC asserts states’ “exclusive jurisdiction [under the Constitution] over their respective non-navigable, intrastate waters and waterways, except as expressly delegated to the federal government by the Constitution or prohibited by it to the States.” Moreover, the federal government’s ability to regulate navigable waters “cannot constitutionally reach non-navigable, intrastate waters and waterways that have no significant connection to navigable waters.”
The EPA’s position
All these matters will be hassled out as the various suits wend their way through the court systems. In the interim, a quick look at what the EPA has publicly stated in regard to points reportedly contained in the states’ lawsuits provides some balance to the issues and counter-balance to claims being promoted about them.
__Overall context of the proposed regulation: “over the past decade, interpretations of Supreme Court rulings removed some critical waters from Federal protection, and caused confusion about which waters and wetlands are protected under the Clean Water Act. As a result, important waters now lack clear protection under the law, and businesses and regulators face uncertainty and delay.”
__Thrust of the proposed regulation: “EPA and the U.S. Army Corps of Engineers have developed draft guidance for determining whether a waterway, water body, or wetland is protected by the Clean Water Act.” The “draft guidance will reaffirm protections for small streams that feed into larger streams, rivers, bays and coastal waters … reaffirm protection for wetlands and filter pollution and help protect communities from flooding.”
__Emphasis of the proposed regulation: to “keep safe the streams and wetlands that affect the quality of the water used for drinking, swimming, fishing, farming, manufacturing, tourism and other activities essential to the American economy and quality of life [while also providing] regulatory clarity, predictability, consistency and transparency.”
But what about “roadside ditches, farm puddles, rain gardens and other currently unregulated waters”? According to the EPA,
— “small streams and streams that flow part of the year are protected under the Clean Water Act if they have a physical, chemical or biological connection to larger bodies of water downstream and could affect the integrity of those downstream waters”;
—“groups of waters” can be evaluated “holistically rather than the current, piecemeal, stream-by-stream analysis”;
—waterbodies without “surface connection to an interstate water or a traditional navigable water” but that do have “significant physical, chemical or biological connection … should be protected”;
—“waters not regulated under the Act” include “Many agricultural and roadside ditches … Artificial lakes or ponds, including farm and stock ponds,” though, admittedly rain gardens were not specifically listed as excluded.
Where does that leave us?
Over half of U.S. states are suing the federal government over regulations issued by the U.S. Environmental Protection Agency which attempt to clarify governmental oversight authority under the Clean Water Act for protecting one of our most precious resources, water. The states initiating the suits are allied with each other, and share common ideological connections through ALEC. As the cases work their way through the U.S. court system, the issues should become more clearly defined, and, ultimately, resolved. Information and references assembled in this brief overview suggest the legal journey ahead of us in this critical area will be quite interesting, and bumpy.
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