Clean Water Act lawsuit: Federal overreach, or clarification of the same old rule?

Idahoans can agree on one thing: Clean water and access to it are vitally important.

But the details on how to maintain that clean water are causing disagreements, different interpretations, and multiple lawsuits involving a new rule through the Environmental Protection Agency’s Clean Water Act.

The rule is complex, but in a nutshell, it’s an attempt by the EPA to clarify which waterways must get pollution discharge permits. (Read it here.)

Right now, the EPA requires permits for those who put pollutants into certain waterways. In the new language, certain kinds of canals — specifically, those that act as tributaries and carry water to other bodies of water — may require permitting.

That’s a problem to some, though the EPA contends the new rule will not result in any new regulations. Still, the language prompted Idaho to join 12 other states in suing the EPA. In August, a federal judge issued a temporary injunction on that rule in the states involved in the lawsuit.

The controversy is two-fold. One: some water users in Idaho and around the west feel it’s inappropriate to include canals in the list of waterways that may need permits, arguing it turns simple agriculture tasks into bureaucratic slogs.

The second argument: The EPA overstepped its authority by making the rule in the first place, said Idaho Attorney General Lawrence Wasden. That definition should have come from Congress, he argues.

“Congress needs to do its job. That’s what really ought to happen,” Wasden told Idaho Reports. “Congress can define this but they haven’t done it. They’ve given a statutory definition and then EPA is acting beyond the scope of Congress.”

It’s important to note that this controversy is nothing new. States have tussled with the EPA over its permitting system for years, with the most notable recent example being Rapanos v United States, a 2006 US Supreme Court Case which challenged the EPA’s definitions of wetlands. The court ruled in favor of the plaintiff, resulting in a whole lot of uncertainty over which waters are and aren’t regulated.

This latest rule, which underwent drafts and received more than one million public comments before its finalization, tries to clarify those definitions.

Another note: the agriculture industry does have exemptions in the Clean Water Act. Ditches don’t require permits, for example.

“The rule does not create any new permitting requirements for agriculture and maintains all previous exemptions and exclusions,” according to an EPA press release. 

Liz Paul of Idaho Rivers United said all the ag exemptions that have always been in place will remain in place, and pointed out the rule is already in place in 37 other states.

While the political power structure in Idaho stands together in opposition to the rule, nationally, other groups are in favor of it. On its website, The Sierra Club calls efforts to stop the rule “major attacks” on the Clean Water Act, and said the rule is the final step in a longstanding policy.

And despite the controversy, the EPA is excited about the change. “We are enthusiastic about the opportunities provided by the rule to improve the process of identifying waters covered under the Clean Water Act and making jurisdictional determinations and permit decisions more effectively and efficiently,” wrote Ken Kopocis, Deputy Assistant Administrator at the EPA’s Office of Water, in a July 31 blog.

There’s one more catch: Congressman Mike Simpson, member of the House Appropriations Committee and chairman of the House Energy and Water Development Appropriations Subcommittee, has inserted language into both the Energy and Water Appropriation Bill and the Interior Appropriation Bill that would block the EPA from implementing the rule.

For more, watch the Oct. 2 episode of Idaho Reports.


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