A group of environmental organizations, including Humboldt Baykeeper, have filed a lawsuit challenging proposed changes to the federal Clean Water Act that they claim would threaten waterways across the nation and locally that were once protected under the act.
The Clean Water Rule was approved by the Environmental Protection Agency and U.S. Army in late May and is set to take effect on Aug. 28. The rule was made to more clearly define what types of waters are protected in the nearly 45-year-old piece of environmental legislation.
“The goal is to challenge the provisions of the rule, which are not consistent with the science and the law,” Waterkeeper Alliance senior attorney Kelly Foster said. “Wherever there are new carve-outs and exemptions, we’re seeking to challenge those.”
While the Waterkeeper Alliance and many environmental organizations agree with many aspects of the definition changes, the organization — with the backing of eight other groups from across the state and country, including Humboldt Baykeeper — filed the lawsuit in late July to challenge “last minute additions” they say were made without proper notice and without proper scientific backing.
Under the Clean Water Act, several types of water bodies are protected or exempted from protection under the act based on certain categories, such as their proximity and connectivity to navigable waters and other defined waterways.
Waterways that fall outside these categorical lines are granted protection or exemption on a case-by-case basis.
Under the new Clean Water Rule, these types of uncategorized waterways that are within 4,000 feet of nexus waterways such as rivers and streams would still be protected under the act. Those that are beyond 4,000 feet are not protected, which the lawsuit plaintiffs say will put wetlands, rivers, streams and the species within them at risk.
“The concern is that it is not a scientific- or legally-based limitation,” Foster said.
Environmental Protection Agency spokesman Robert Daguillard in Washington D.C. said that the agency cannot comment on ongoing litigation, but provided informational reports on the rules.
Humboldt Baykeeper Director Jennifer Kalt identified the Liscom Slough in Arcata as one of the waterways that may lose its protection under the federal water regulations.
The new rules state that the EPA and Army Corps of Engineers found the 4,000-foot line to be “reasonable and consistent with the statute and its goals and objectives.”
However, a series of memorandums released by the U.S. House Oversight and Government Reform Committee in late July show that the Army Corps of Engineers had issues with the final rules. In a July 27 memorandum to the assistant secretary of the Army for Civil Works, of Army Corps of Engineers Maj. Gen. John W. Peabody relayed “serious concerns and recommendations” regarding the changes.
“That just-completed review reveals that the draft final rule continues to depart significantly from the version provided for public comment and the Corps’ recommendation related to our most serious concerns have gone unaddressed,” Peabody’s letter states.
One of the memorandums written by U.S. Army Corps of Engineers Assistant Chief Counsel Lance Wood of the Environmental Law and Regulatory Programs directly addresses the 4,000 foot nexus, stating that it would have “significant adverse environmental affects.”
“The 4,000-feet cut-off line (or “bright-line rule”) for jurisdiction has no basis in science or law, and thus is ‘arbitrary,’” Wood wrote in an April 24 memorandum.
Another April 24 memorandum by Army Corps of Engineers Regulatory Program Chief Jennifer Moyer estimates about 10 percent of waters under the jurisdiction of the Clean Water Act would be exempt if the 4,000-foot rule were put into place.
Another part of the new rules the lawsuit challenges is the exemption of tributary streams and wetlands that have been ditched or channelized.
The final rule categorically reduced protections for tributary streams, wetlands, streams that have been ditched or channelized, and for water bodies that are only connected to protected downstream waters by subsurface water flows.
“This rule change will weaken protection for waterways on and near big agribusiness operations, likely resulting in more agricultural pollutants on our food and in our environment,” Senior Attorney Adam Keats of the Center for Food Safety said in a statement. “The EPA and the Army Corps should be working to strengthen, not gut, the laws that keep industrial agricultural pollution in check.”
Kalt said this is particularly important for the Humboldt Bay area, where there is a high agricultural presence that have dug agricultural water ditches.
With several streams and waterways that flow into Humboldt Bay recently federally listed as impaired by fecal bacteria under the Clean Water Act, Humboldt Baykeeper is currently beginning work to identify the sources of the contamination — one of which could be from agricultural runoff, she said.
“Given what we know about the bacteria in out waterways, it remains to be seen whether agricultural runoff is contributing to that pollution,” Kalt said. “But if it is, it would be a travesty to exempt them from the Clean Water Act.”
Will Houston can be reached at 707-441-0504.
