Whether the Obama administration will win over industry critics with its revised final water rule remains to be seen. But one thing is clear: Environmental groups are in a tough spot.
At best, greens were nonplussed by some key changes in the final Waters of the U.S. rule, such as the inclusion of hard-line boundaries for when waters cannot be protected under the Clean Water Act and clearer — and, arguably, broader — exclusions for ditches.
"We were disappointed by those areas where the agencies excluded features categorically from the law, especially in those instances where the agencies’ expert science advisers urged them not to provide categorical exemptions," Jon Devine, a lead water attorney at the Natural Resources Defense Council, said during an Environmental Law Institute event last week.
But Devine’s group is willing to accept some disappointment in exchange for protections the rule offers many waters after eight years of confusion sparked by two muddled Supreme Court rulings and guidance from the George W. Bush administration.
"On balance … we think that the benefits of restoring guaranteed protections to the waters at the core of this rule is a major improvement," Devine said.
Other groups that had laid the groundwork of support for the rule, including the National Wildlife Federation and sportsmen’s groups like Trout Unlimited, have come to the same conclusion.
Politically, it would have been hard for them to do otherwise. NRDC, NWF, the League of Conservation Voters and Environment America had already invested millions of dollars in ad campaigns, some of which launched before the final rule had even been released.
But not all greens are ready to sign on to the compromise.
Two of the more litigious groups — the Center for Biological Diversity (CBD) and Waterkeeper Alliance — quickly came out against the rule.
"We believe this weakens jurisdiction beyond what is supported by the science and the law, particularly with respect to jurisdiction over tributaries," said Kelly Foster, senior attorney for the Waterkeeper Alliance.
While industry opponents of the rule have lambasted the breadth of the rule’s "tributary" definition, Foster argued that the definition leaves out important streams, particularly in the arid West where many flow only a few times a year and may not have the features the definition requires.
"Tributaries are very high on our list of concerns because they are very obviously connected to downstream waterbodies, and here we’re talking about discharge permitting," she said. "You discharge into a stream that doesn’t have an ordinary high-water mark, that discharge won’t be regulated under the Clean Water Act. That’s not OK."
While this was a problem in the proposed rule, she said, changes in the final rule that limit the agencies’ ability to bring waters under federal jurisdiction through case-specific determinations stand to put them out of reach altogether.
For his part, Foster’s boss, Waterkeeper Alliance President Robert F. Kennedy Jr., raised major concerns with the final rule’s limited reach over farther-flung, but biologically significant, wetlands like vernal pools. The rule gives some such waters special consideration but does not guarantee their protection and leaves other such waters very likely beyond federal reach.
"I’ve been around long enough, from when the Clean Water Act was passed, that at that point the courts were ruling that it protected prairie potholes, and it protected ephemeral pools and vernal pools and headwater streams, and those are actually in many ways the most important waterways to protect," Kennedy said in a brief interview at the group’s annual conference in Boulder, Colo., last week. "They’re more important than the main river body, because that’s where the most significant life begins."
Brett Hartl, who directs endangered species policy at CBD, said the Clean Water Act’s Section 404 permitting process doesn’t just ensure that wetlands damages are offset but also ensures that agency officials with knowledge about endangered species have a line into what’s going on on the ground.
Even though, under the Endangered Species Act, people shouldn’t be filling in a wetland that serves as important habitat for an endangered species, even if that wetland’s not covered by the Clean Water Act, those types of things often slip through the cracks, he said.
"The 404 process at least guaranteed some minimum level of agency oversight because the EPA and Army Corps understand they have to consult if there’s a risk of harming species, and without that safeguard it’s a lot harder to see little bits and pieces of habitat being protected," he said.
"It’s going to be tiny and incremental, but that’s how most species decline — in little, tiny cuts over time," he said.
The question now, though, is what environmental groups can do about their concerns in court.
Industry and state lawsuits opposing the rule entirely are guaranteed. Where and how they will be filed, and how the courts will handle them, though, is uncertain, making litigation strategy extremely complicated (Greenwire, June 5).
Moreover, environmental groups with concerns about the final rule must walk a fine line, generally seeing it as an improvement over the George W. Bush administration guidance and not wanting to have the entire rule thrown out.
"I think we’ll probably file a lawsuit against part of the rule; we are going to support the rest of it, strongly support the rest of it," Kennedy said.
"There’s a small chance that if you got a really right-wing federal judge that he could throw out the entire rule," he acknowledged, though. "That’s a judgment call we’re going to have to make. I think there will be argument about it within our organization."
Pat Parenteau, a University of Vermont Law School professor with a long history of Clean Water Act litigation, said the strongest challenge from environmental groups would take on the rule’s limited reach over biologically important, but geographically isolated waters, for instance, playa lakes that serve as habitat to the endangered whooping crane.
He argued that EPA could be vulnerable to such a challenge, since an external Science Advisory Board had argued that these types of waters can be important.
Greens "have a hell of a track record," Parenteau said.
"They don’t bring frivolous cases. They are going to study the landscape, they are going to find vulnerable targets, and they will shoot when they find it," he said.
Another potential legal challenge: EPA did not do an Endangered Species Act consultation on the rule.
Hartl, with CBD, argued that the agency should have gone through that step, but he said his group is unlikely to raise the issue.
"We’re puzzling over it, but it’s hard," he said. "I can only imagine what the consequences would be if the whole rule fell apart because of the Endangered Species Act — that wouldn’t be good for anybody."
To be sure, that’s the risk that any lawsuit from greens takes on.
But Jan Goldman-Carter, senior manager for wetlands and water resources at the National Wildlife Federation and a key supporter of the rule, said that litigation is risky for both sides.
"Those who might challenge the rule for going too far not only risk derailing the rule and leaving landowners and communities with the confusing, burdensome, and harmful status quo, but losing the expanded exemptions they have secured in the final rule," she said by email.
"Those who challenge the rule for not going far enough risk leaving millions of acres of wetlands and stream miles in legal limbo subject to case-specific decisions and creating bad law that could ultimately preclude long-term protections for many waters," she said.
Reporter Jennifer Yachnin contributed from Boulder, Colo.