Federal Judge Takes Dump On Clean Water Act In 24 States

Now that water's not so clean.

A federal judge in North Dakota issued a temporary stay Wednesday on a key EPA rule that protects small bodies of water like streams, wetlands, and creeks that can feed into larger water supplies, in yet another fight between regulators who think it would be nice for water in this country to not be polluted, and business and Big Agriculture interests who think the Feds shouldn't be able to stop them from dumping nasty shit that can make its way into streams and rivers.

At issue is a December 2022 EPA rule defining what exactly the term "waters of the United States" means in the 1972 Clean Water Act, because how those five words are interpreted makes all the difference in whether particular damp spots on the map are subject to regulation by the federal government. EPA and Republicans have fought over the term through multiple presidential administrations, and you may be delighted to know that it's such a big part of environmental law that it's regularly abbreviated as "WOTUS."

Also I promise not to go too much into the weeds, or the reeds, since the details of "waters of the US" can be remarkably dry.

To oversimplify a bit, would-be polluters (and the 24 mostly Republican-run states who sued the EPA) would really prefer that the definition only include bodies of water that are fairly permanent and obviously connected to other bodies of water, like lakes or rivers or wetlands, and streams that flow pretty much year round. At the outside, they'd also include "semi-permanent" stream and riverbeds that are frequently dry, like the LA River, but that drain into other bodies of water when it rains.

Nutty environmentalists and scientists — and the December 2022 EPA rule — point at hydrological data showing that nasty stuff in one place can very easily get into water downstream even if you don't see a stream right there, so the EPA rule includes wet spots — even sometimes-wet spots — that have a "significant nexus" to navigable waterways.

Ranchers and agribusiness and developers claim this is tyrannical overreach and an excuse for the EPA to require expensive, time-consuming permits even if a hypothetical "roadside ditch" nowhere near any major waters might conceivably be linked to another body of water. I recall seeing that "roadside ditch" example as far back as the '90s; the anti-enviros love that ditch almost as much as they love complaining that all of modern progress is cancelled by crazy hippies who won't let the snail darter go extinct. 

 In yesterday's ruling — which includes a fine history of the fight over defining WOTUS, even if the ruling itself is crap — US District Judge Daniel L. Hovland put a hold on enforcement of the rule by EPA and the Army Corps of Engineers while the case goes forward. Hovland's ruling piggybacks on a previous injunction in a case that blocked the rule in Texas and Idaho, blocking the rule in a total of 26 states. Here is a handy map of the Polluters' Friends, from EarthJustice :

Not surprisingly, land-messers-uppers of all stripes were delighted by the ruling, like Todd Wilkinson, the president of the National Cattlemen’s Beef Association, who, come the revolution, will be what's for dinner.

Once again, the courts have affirmed that the Biden administration’s WOTUS rule is overreaching and harmful to America’s beef farmers and ranchers. [...] Cattle producers in 26 states now have some additional certainty while this rule is being litigated and we are optimistic that the Supreme Court will provide nationwide clarity on the federal government’s proper jurisdiction over water.

And yeah, considering the current drift of the Supremes, that may turn out to be the case — but it may help that in addition to the EPA being one of the defendants, the case is also being defended by EarthJustice on the behalf of four tribes in the affected states — the Chickaloon Village Traditional Council (Alaska), Rappahannock Tribe (Virginia), Tohono O’odham Nation (Arizona), and White Earth Band of Minnesota Chippewa Tribe. Justice Neil Gorsuch, as we've noted before, has a particular interest in cases affecting tribal sovereignty, so that might overcome his usual inclination to let corporations do anything they want. Or not.

For its part, the EPA issued a statement saying that it and the Army Corps of Engineers are reviewing the order, but that it considers the December 2022 rule the best interpretation of the Clean Water Act, and noting that the rule remains in effect in the rest of the states. (So move there if you like clean water, basically. This national divorce is coming along just great .)

The court's injunction came just a week after President Joe Biden vetoed a Republican-led attempt to kill off the EPA rule through the Congressional Review Act. That resolution passed in the GOP-led House and picked up four votes in the Senate from Democrats — Joe Manchin, Jon Tester, and both Nevada senators, Catherine Cortez Masto (!) and Jacky Rosen (!) — plus Arizona independent Kyrsten Sinema, who caucuses with corporate lobbyists.

In his veto message, President Biden said that overturning the rule would

leave Americans without a clear definition of “Waters of the United States”. The increased uncertainty caused by H.J. Res. 27 would threaten economic growth, including for agriculture, local economies, and downstream communities. Farmers would be left wondering whether artificially irrigated areas remain excluded or not. Construction crews would be left wondering whether their waterfilled gravel pits remain excluded or not. The resolution would also negatively affect tens of millions of United States households that depend on healthy wetlands and streams.

And now, for half the USA, that is exactly where yesterday's decision leaves us — in a roadside ditch, exactly where polluters would like us to be.

[ AP / EarthJustice / Reuters / Order in West Virginia et al v. EPA / White House / Photo:  AdA Durden, Creative Commons License 2.0 ]

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