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Environmental Groups Sue Over Trump Rollback of Waters Rule

Oct. 23, 2019, 9:47 PM

Environmentalists have taken their first legal shot at the Trump administration’s repeal of a landmark Obama-era water regulation.

The National Wildlife Federation, Natural Resources Defense Council, and nine other groups sued Oct. 23 in the U.S. District Court for the District of South Carolina, accusing the federal government of breaking the law in its rollback of the 2015 Clean Water Rule.

The Environmental Protection Agency and Army Corps of Engineers finalized their decision Oct. 22 to repeal the regulation—also known as the Waters of the United States, or WOTUS, rule—spelling out which wetlands and waterways are subject to federal jurisdiction under the Clean Water Act.

Environmental groups say that move was legally flawed, violating both the Administrative Procedure Act and the Constitution’s due process clause, which, the lawsuit says, “requires rulemakings to be undertaken with an open mind.”

“Throughout the process, the outcome has been assured,” the complaint says. “The agencies have simply gone through the motions of giving notice and taking comment without providing any legitimate rationale to support the predetermined result.”

11 Groups Involved

The coalition includes NWF, NRDC, the South Carolina Coastal Conservation League, Charleston Waterkeeper, American Rivers, Chattahoochee Riverkeeper, Clean Water Action, Defenders of Wildlife, Friends of the Rappahannock, North Carolina Coastal Federation, and North Carolina Wildlife Federation.

“The administration is pretending that pollution dumped upstream doesn’t flow downstream, but its plan puts the water used by hundreds of millions of Americans for drinking, bathing, fishing, and business at risk,” Southern Environmental Law Center attorney Blan Holman, who is representing the coalition, said in a statement. “We are going to court to protect clean water across the country.”

The lawsuit adds to the complex legal landscape involving the 2015 WOTUS rule.

Separate lawsuits in district courts across the country challenge the legality of the Obama rule itself, and varying court decisions have created a national checkerboard, in which the Obama rule is in effect in some states but not others.

Unless halted by a court, the Trump administration’s repeal will officially erase the Obama administration’s WOTUS rule in December.

The EPA and the Corps are working on a replacement rule to establish new definitions for the waterways and wetlands covered by the Clean Water Act, but it’s not expected out until early next year.

The libertarian-leaning Pacific Legal Foundation filed a separate lawsuit Oct. 22 challenging earlier water jurisdiction standards from 1986, which come back into effect in the absence of the Obama rule or a replacement rule.

The new case is S.C. Coastal Conservation League v. Wheeler, D.S.C., docket number not available, 10/23/19.

To contact the reporter on this story: Ellen M. Gilmer in Washington at egilmer@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Rob Tricchinelli at rtricchinelli@bloombergenvironment.com