The Trump Administration’s Waters of the U.S. definition faces another 11th-hour lawsuit, this time from environmental and tribal groups.
The coalition says the Trump administration’s revisions will dramatically decrease the number of waterways protected under the Clean Water Act and thus make it easier for industries to pollute.
This latest WOTUS suit enters the fray amidst a complex tapestry of other legal maneuvers.
A federal judge in San Francisco on Friday rejected a preliminary injunction against the rule, which was requested by a coalition of Democratic attorneys general. The group didn’t have enough chance of winning their broader legal challenge to the rule, the judge said.
Meanwhile, in Colorado, a judge granted that state’s request to freeze implementation there, concluding the state was likely to succeed in challenging the administration’s definition of protected waterways. The judge said letting the rule take effect, only to be struck down later, would create unnecessary confusion.
Narrowing the scope of WOTUS has long been a priority for farmers and ranchers in North Dakota.
“Our state’s landowners, farmers, ranchers, energy producers and other industries need regulatory certainty,” Sen. John Hoeven said. “We worked with the administration to provide that with the Navigable Waters Protection Rule, which keeps the EPA’s regulatory authority within the bounds set by Congress under the Clean Water Act. We welcome and support the rule’s implementation today and oppose any effort to go back to the overreaching 2015 WOTUS rule.”
Sen. Kevin Cramer, meanwhile, said a judicial challenge from “fringe” environmental groups isn’t surprising.
“With significant input from North Dakotans, EPA Administrator Andrew Wheeler crafted a rule within the confines of the law that adheres to cooperative federalism and the original intent of the Clean Water Act, which puts states like North Dakota at the forefront of managing waters within their boundaries because they and their property owners are best suited to do so,” he said. “These environmental groups may not like it, but it’s the law.”
The suit was filed by Earthjustice on behalf of the Pascua Yaqui Tribe of Arizona, Bad River Band of Lake Superior Chippewa, the Quinault Indian Nation of Washington state, the Fond du Lac Band of Lake Superior Chippewa of Minnesota, the Menominee Indian Tribe of Wisconsin, the Tohono O’odham Tribe of Arizona, Mi Familia Vota, Puget Soundkeeper Alliance, Idaho Conservation League, and the Sierra Club.
“The widespread damage the Dirty Water Rule is poised to cause is clear evidence that the Trump administration is disinterested in protecting our water from polluting corporations,” said the coalition of groups suing Trump’s Environmental Protection Agency. “Despite much improvement over the years, more than half of the country’s streams and rivers remain unfit for swimming, drinking, or fishing. We must rescind and replace Trump’s Dirty Water Rule.”
The group has modeled five watersheds in the U.S. to show the damage they believe would be possible under the Trump administration’s revisions. These models include the Upper James River Watershed in North and South Dakota.
The group says the model shows a significantly negative impact on isolated prairie pothole wetlands, which are important for wildlife habitat and flood retention.
Wetlands, in general, help lessen extreme effects from floods, droughts and fires. They provide habitat and they can also help with water quality by filtering sediment, nutrients and other pollutants from surface water.
Ephemeral streams, meanwhile, flow only during very wet periods, but during that time they do hold nutrients, which can be carried downstream to replenish water systems. At other times they provide habitat and serve other important ecological functions.
Omitting these intermittent water bodies from the Clean Water Act could lead to contamination of many downstream water bodies, the group says, by opening them up to “pollution and destructive development.”
“When waters have no Clean Water Act protections, industries can dump uncontrolled discharges of toxic, radiologic, and pathogenic pollution, harming drinking water supplies, recreational waters, wildlife, animals, and people,” the group said in a media release.
However, most states, including North Dakota, do not allow uncontrolled discharges of pollutants, regardless of whether the dumping site is defined as land or water.
“That would be a violation of multiple rules on the state level,” Director of the Department of Environmental Quality’s Division of Water Quality Karl Rockeman told the Williston Herald. “We prohibit the dumping of waste, and I think that is the broadest definition. It doesn’t have to be a specific hazardous material to fall under that. It could be just really anything that is a waste product. And it wouldn’t have to be in any water to be prohibited. It would still be a violation.”
Director of the Department of Environmental Quality David Glatt, meanwhile told the Wiliston Herald that the state does have rules that prohibit toxic substances from being placed in ways where they can leach into water systems. That includes both Waters of the U.S. and ground water systems, the latter of which are not federally regulated.
“North Dakota has appropriate laws that deal with the protection of water,” he said.