Greens jump into legal donnybrook over Obama rule

By Annie Snider | 07/22/2015 01:00 PM EDT

With state and industry challenges to the Obama administration’s controversial water rule piling up in courts across the country, a number of green groups today brought suits from the opposite end of the spectrum, arguing that the final version does not go far enough in protecting the nation’s streams, ponds and wetlands.

The Center for Biological Diversity, Waterkeeper Alliance, Center for Food Safety and Turtle Island Restoration Network
filed a petition in the 9th U.S. Circuit Court of Appeals in San Francisco challenging the rule, which is aimed at clearing up years of confusion over the reach of the Clean Water Act.

The groups are still working on their complaint, which can be filed later, but Bret Hartl with CBD said it will argue the rule violates the Clean Water Act, the Administrative Procedure Act, the Endangered Species Act and potentially the National Environmental Policy Act.

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Meanwhile, the Sierra Club, represented by Earthjustice, plans to bring similar claims in a separate suit also filed in the 9th Circuit today.

Green groups were caught off-guard by several key changes made in the water rule between the version that was proposed in spring 2014 and the final version unveiled at the end of May.

Among those changes: hard-line distance boundaries for when a wetland or pond is outside the reach of federal Clean Water Act protection, expanded exemptions for ditches and new language that could put some agricultural or forested wetlands out of reach. Some groups are also unhappy that the so-called waste treatment exclusion, which essentially allows companies to create an impoundment from regulated water for the purpose of waste treatment, was formalized in the rule (Greenwire, June 2).

But environmental groups are hoping to be able to walk a fine line in challenging just portions of the rule, while leaving intact the overall rule, which they generally support (Greenwire, June 15).

"There is a lot to like in this rule," said Janette Brimmer, an Earthjustice attorney working on the suit. "There’s a lot of good stuff in there, we just want to make sure that this rule is fully conforming with the law and is protective of waters that need to be protected."

The suits from environmental groups come as two more states have joined a multistate challenge to the rule brought in U.S. District Court in southern Georgia.

The state of Indiana and the North Carolina Department of Environment and Natural Resources yesterday joined what is now an 11-state suit lead by West Virginia Attorney General Patrick Morrisey challenging the rule as violating the U.S. Constitution, the Clean Water Act and the Administrative Procedure Act (Greenwire, June 30).

"We contend EPA has greatly overstepped its bounds by intruding into an area of state environmental jurisdiction with a rule that is impractical, potentially harmful to Indiana’s agricultural economy and costly to taxpayers," Indiana Attorney General Greg Zoeller said in a statement. "In defending state authority, my office is joining our fellow states in asking the federal court to restrain EPA’s unconstitutional overreach."

The states in that suit yesterday filed a motion for a preliminary injunction to prevent the agencies from beginning enforcement of the rule on Aug. 28, as scheduled. Federal Judge Lisa Wood swiftly ruled to require expedited briefing on that motion, with oral arguments slated for Aug. 12.

But with suits from states, industry groups and now greens challenging the water rule filed in a variety of district and circuit courts across the country, the Department of Justice moved in a separate case yesterday to stay proceedings until it can go about requesting to have the cases transferred and consolidated.

In its motion, DOJ argued that staying proceedings would save all parties time and money, as well as spare everyone the trouble created by different, inconsistent rulings around the country.

"Indeed, the potential for inconsistent rulings that arises from multiple facial challenges to the Rule proceeding simultaneously in multiple different district courts threatens the regulatory clarity and certainty that are at the heart of the Rule," DOJ attorneys argued.

Meanwhile, congressional efforts to block the rule legislatively are continuing on a separate track, although time is running out for action on key Senate measures before the August recess.

Conservation groups that support the rule are not resting easy, though. Sportsmen’s groups today unveiled a poll showing hunters’ and anglers’ support for the rule.

That poll, conducted by Republican polling firm Public Opinion Strategies for the National Wildlife Federation, found that 83 percent of the 1,000 sportsmen and sportswomen thought Clean Water Act protections should apply to smaller headwater streams and wetlands.

The sample leaned conservative, according to the polling firm, with 38 percent identifying as Republican and 49 percent saying they considered themselves supporters of the tea party.

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