A federal judge has declined to block implementation of the Trump administration’s Navigable Waters Protection Rule, which will allow it to go into effect Monday as scheduled, replacing the Obama-era "waters of the U.S." rule.
In Colorado the same day, however, a federal judge stayed implementation of the rule and prevented EPA and the Army Corps of Engineers from administering the Clean Water Act Section 404 program, which regulates dredge-and-fill activities for development, water resource projects and other uses, in that state. Granting a preliminary injunction, U.S. District Judge William Martinez said former Justice Anthony Kennedy and the four dissenters in the Supreme Court's Rapanos decision "had already rejected the specific approach" the agencies adopted in the new rule.
In the California case, 17 states, the North Carolina Department of Environmental Quality, the District of Columbia, and the City of New York sued EPA to block the NWPR, alleging that millions of acres of stream miles and millions of acres of wetlands would no longer be protected, in part through the exclusion of ephemeral streams from jurisdiction.
On the other side was, of course, the Environmental Protection Agency, whose Justice Department attorney argued Thursday that "the incremental impact of [the rule] is actually very small, and marginal." Joining the government to oppose the plaintiffs are 23 states.
In his denial order, U.S. District Judge Richard Seeborg said the plaintiff states and cities had not been able to demonstrate the new rule violates the Clean Water Act or that it would cause enough damage to the environment to justify issuance of a preliminary injunction.
Some of the disagreements over the rule’s validity, argued Thursday before Seeborg, come down to policy choices that are certain to differ depending on who’s running the government, he said.
“In the absence of precedent construing what must be included as ‘waters of the United States,’ plaintiffs are left with little more than policy arguments that the narrowness of the 2020 rule serves poorly to carry out the objectives of the CWA,” Seeborg said. “As compelling as those arguments may be, they do not provide a sufficient basis for a court to substitute its judgment for the policy choices of the agency.”
Given longstanding confusion over the scope and meaning of “waters of the U.S.,” Seeborg said, “The need for a new rule was manifest, and had been for decades.”
The Obama administration’s 2015 Rule was rejected by the courts, he said. “Certainly, the [EPA and Army Corps of Engineers] could have promulgated a new rule that remained expansive while attempting to address the concerns courts had raised about the outer limits of jurisdiction under the CWA,” he said.
However, he added, “It is no secret that a motivating factor in choosing to go the opposite direction was a ‘change in administrations,’ but that does not make it improper.”
Similarly, the plaintiffs’ arguments that the agencies disregarded scientific evidence used to prepare the 2015 rule “is ultimately a policy disagreement as well,” he said.
He also rejected the states’ and cities’ argument that the “the 2020 Rule ‘disregards’ the primary objective of the CWA to protect water quality.”
The water quality argument “adds little to the arguments they have already made,” the judge said. “That the agencies now choose a different approach, and a different balance between federal and state responsibilities does not mean they have disregarded the primary objective of the statute in [an] arbitrary or capricious manner that is likely to warrant setting aside the rule.”
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Evaluating whether the rule was “arbitrary and capricious” under the Administrative Procedure Act, Seeborg said, “The requirement is only that agencies must explain the basis for their change, and defendants have adequately done so here.”
“Were the court tasked with the question of whether the new rule represents wise environmental policy or the best approach to protecting water resources that could be supported by scientific data, the result might be different,” he said. “The court’s narrow role, however, is only to evaluate whether the rule has been adopted in compliance with the requirements of the [APA]. In that context, plaintiffs have not made a sufficient showing to support an injunction or an order delaying the effective date of the new rule.”
The Colorado case involves the state's regulation of dredge-and-fill activities. The state argued that the new definition of "waters of the U.S." in the NWPR would leave many state waters unprotected, creating a gap in regulation that will have to be filled by the state.
But "Colorado cannot simply start issuing dredge and fill permits on June 22," the state said in its motion for a P.I. "Establishing its own permitting program for dredge and fill activities will require legislative action and a lengthy implementation process. Even if the state is able to complete the necessary legislative and regulatory steps to create a comprehensive new program, it comes with enormous unrecoverable costs at the expense of other important state programs."
"Ephemeral and intermittent waters account for at least 68 percent of Colorado’s stream miles," the state said. "All of Colorado’s ephemeral streams will be categorically excluded from federal [CWA] protection, and it is uncertain how many of Colorado’s intermittent streams will be covered."
In a news release announcing its lawsuit, the state said eliminating federal jurisdiction over "a significant number of Colorado’s tributaries, adjacent waters, and wetlands that affect downstream waters" leaves the state's "snowmelt streams and wetlands vulnerable to pollution, which would negatively impact our state’s agriculture and outdoor recreation economy."
Story updated to include additional information about Colorado case.
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