Feds face another clean water lawsuit

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The federal government is being sued by conservation groups and industry over the new Waters of the U.S. rule.

Conservation groups say new rule has too many pollution loopholes

Staff Report

FRISCO — There will be yet more legal wrangling over a new federal clean water rule, as conservation groups said last week they will sue to plug some loopholes that could open the door for more pollution in wetlands and streams.

At issue is the so-called Waters of the U.S. rule finalized by the EPA and the U.S. Army Corps of Engineers in May. That means the feds will be getting sued twice over the rule. Industry groups announced their challenge in mid-July, claiming the new regulations “dramatically expand federal regulatory authority.

The rule was developed to address wetlands and smaller seasonal streams that were left in regulatory limbo by a pair of U.S. Supreme Court decisions. The new rule defines which waterways can be protected against being destroyed, degraded, or polluted without a permit under the Clean Water Act.

Environmental groups say the new rule arbitrarily exempts and removes safeguards for critically important streams, wetlands and other waterways, many of which had been protected since the 1970s. These unprecedented exemptions are contrary to clear scientific evidence demonstrating the importance of these waterways for drinking water, recreation, fisheries and wildlife.

“Communities deserve the broadest protection of waters consistent with sound science,” said Marc Yaggi, executive director at Waterkeeper Alliance. “We need to advocate for the strongest rule possible so that we move forward in restoring our nation’s waters by controlling the discharge of pollutants into the smaller tributaries that feed into them.”

Under the new rule, wetlands, ponds and other small water bodies can only be protected if they are within 4,000 feet of a stream or river. However, if a wetland is just one foot over the arbitrary 4,000-foot line, it cannot be protected — even if it is vitally important in preserving downstream water quality.

The legal challenge by conservation groups alleges the rule failed to ensure that the exemptions don’t jeopardize the survival of hundreds of endangered species as required by the Endangered Species Act. Endangered salmon and sturgeon on both coasts, California red-legged frogs, and bog turtles are among the many species that depend on clean, unpolluted water and will be harmed by the exemptions created by this rule.

“Freshwater species in the United States are already going extinct hundreds of times faster than terrestrial species, and these loopholes will make survival even harder for them,” said Brett Hartl, endangered species policy director at the Center for Biological Diversity. “There’s no question that eliminating protection for thousands of wetlands waters will hurt people and wildlife for generations to come.”

The lawsuit also challenges the rule’s exemption for streams, wetlands and ponds that are adjacent to streams and rivers if those water bodies are currently used in farming, ranching or silviculture activities.

“This rule change will weaken protection for waterways on and near big agribusiness operations, likely resulting in more agricultural pollutants on our food and in our environment,” said Adam Keats, senior attorney at the Center for Food Safety. “The EPA and the Army Corps should be working to strengthen, not gut, the laws that keep industrial agricultural pollution in check.”

The coalition, represented by Earthrise Law Center, Lewis & Clark Law School’s environmental litigation clinic, and Stanford Law School’s Environmental Law Clinic, includes Waterkeeper Alliance, the Center for Biological Diversity, the Center for Food Safety, Turtle Island Restoration Network, Humboldt Baykeeper, Monterey Coastkeeper, Russian Riverkeeper, Snake River Waterkeeper, and the Upper Missouri Riverkeeper.

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