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NRDC Sues Over Water Protection Rollback

Tuesday, May 5, 2020

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The Natural Resources Defense Council, along with its partners, announced just last week that they had filed a lawsuit against the U.S. Environmental Protection Agency and the Army Corps of Engineers over the Navigable Waters Protection Rule.

Published on April 21, the rule intends to redefine navigable waters—currently defined in the Clean Water Act—and plans to go into effect on June 22.

Water Protection History

Starting in 2000, the CWA—also known as a National Compliance Initiative—was developed in conjunction with state co-plaintiffs to act against municipal sewer systems with CWA violations. Since its creation, the EPA is reported to have acted against 97% of large combined sewer systems, 92% of large sanitary sewer systems and 79% of Phase 1 municipal separate stormwater systems.

In May 2015, former President Barack Obama issued an executive action that broadened the definition of U.S. waters to cover about 60% of the nation’s waterways in order to expand federal limits on pollution in wetlands and small waterways.

By the end of fiscal year 2019, the EPA announced that it was discontinuing Keeping Raw Sewage and Contaminated Stormwater Out of Our Nation’s Waters NCI at the end of the year, as the agency believed the NCI no longer presented a significant opportunities to correct water quality impairment nationwide.

Although, the EPA added that it would continue to provide enforcement, monitor implementation of long-term agreements and compliance assurance efforts as a part of the core enforcement program.

In August 2019, PaintSquare Daily News reported that the EPA proposed a rule for the CWA, seeking to “increase the transparency and efficiency of the 401 certification process and to promote the timely review of infrastructure projects while continuing to ensure that Americans have clean water for drinking and recreation” at the Council of Manufacturing Associations Summer Leadership Conference in Charleston, South Carolina.

Following Executive Order 13868, “Promoting Energy Infrastructure and Economic Growth,” made by President Donald Trump in April, the EPA proposed to modernize and clarify both the timeline and scope of CWA Section 401 certification review and action, as to avoid misperception and unnecessary delays in infrastructure projects.

At the end of January, the Trump administration announced that it was finalizing the CWA to remove federal environmental protections from ephemeral bodies of water—meaning bodies of water that only form after rainfall or only flow part of the year. The revision also applies to streams, wetlands, groundwater, waste treatment systems and priorly converted cropland and farm watering ponds.

The rollback affected nearly 95 environmental rules.

In April, the Navigable Waters Protection Rule was published and is reported by the EPA to regulate, “traditional navigable waters and the core tributary systems that provide perennial or intermittent flow into them.”

The final rule is also reported to fulfill Executive Order 13788—Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule—through reflecting the legal precedents set by key Supreme Court cases, as well as robust public outreach and engagement, including pre-proposal input and comments received on the proposed rule.

In March, the NRDC announced its intent to sue the Trump administration over the matter.

What’s Happening Now

On April 29, the NRDC, along with Clean Wisconsin, Connecticut River Conservancy, Conservation Law Foundation, Massachusetts Audubon, Merrimack River Watershed Council, New Mexico Wilderness Alliance, and Prairie Rivers Network, officially filed its lawsuit to fight against the federal protection rollback in the Massachusetts District Court.

According to the NRDC, the Navigable Waters Protection Rule—which the council refers to the “Dirty Water Rule”—excludes millions of miles of rain-dependent streams and millions of acres of flood-preventing, pollution-trapping wetlands from safeguards outlined in the CWA.

In the lawsuit, both the EPA and the Corps have been accused of violating the Administrative Procedure Act and the CWA when promulgating the Navigable Waters Rule.

The violations are specifically pointed to the agencies’ disregard for the Navigable Waters Rule’s impacts on the integrity of the nation’s waters, which removes protections for waters and overlooks science-based findings reported in the CWA.

Other points made in the lawsuit include the misrepresentation and disregard for the EPA’s Science Advisory Board advice, inconsistencies regarding protected and unprotected waters and lack of clarity to successfully implement.

A court date for the case has not been scheduled at this time.

Recent Water Support

Back in February, the United States Department of Agriculture and EPA announced a Memorandum of Agreement (MOA) aiming to help water systems face the challenges of aging infrastructure, workforce shortages, increasing costs, limited management capacity and declining rate bases.

The formal collaboration will help to create short- and long-term sustainability in rural water systems, focusing on four main areas:

  • Provide training and education resources, among others, to incorporate strategies into rural utility management;
  • Support of water system partnerships through community education and utility information on the array of tools available to support partnerships that can increase sustainability;
  • Support of the water sector workforce, in part by continuing to raise awareness of rural water sector careers through promotional initiatives; and
  • Support compliances with drinking water and clean water regulations, which includes making rural systems a funding priority.

At the end of April,  Environmental and Public Works Committee Chairman John Barrasso, R-Wyoming, and Senator Tom Carper, D-Delaware, released two pieces of draft legislation that would authorize the investment of $19.5 billion in the nation’s water infrastructure.

The proposed legislation includes America’s Water Infrastructure Act of 2020 (AWIA 2020) and the Drinking Water Infrastructure Act of 2020.

Specifically, $4.3 billion in federal funds will be used for 20 Corps projects. Most notably, projects receiving the funds include a $909 million flood protection program in Norfolk, Virginia and a $794 million federal share for a $983.7 million flood protection plan for multiple areas along the Atlantic shore of Long Island, New York.

Additionally, the AWIA 2020 offers conditional funding amounting to $7.5 billion, which would be used over three years for the EPA’s Clean Water State Revolving Funds (SRFs) and $2.5 billion for drinking water SRFs. However, because the funding is conditional, budgetary scoring could require offsetting revenue increases.

The draft of the Drinking Water Infrastructure Act would use the remaining $2.5 billion to reauthorize the Safe Drinking Water Act emergency fund and would authorize $300 million in grants to help with cancer-linked chemical contaminations.

   

Tagged categories: Clean Water Act; Environmental Control; Environmental Controls; Environmental Protection; Environmental Protection Agency (EPA); EPA; EPA; Government; Laws and litigation; Lawsuits; NA; North America; President Trump

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