McCarthy Defends Key Water Rule in Face of Litigation

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By Paul Stinson

Nov. 9 — Emphasizing the critical need to clarify what waters are protected under the Clean Water Act, Environmental Protection Agency Administrator Gina McCarthy said Nov. 9 that the government was ready to defend the merits of the federal rules in the face of mounting litigation.

“There's been incredible confusion over the past 10 years that really has left drinking water resources virtually unprotected in many ways,” the top EPA official said. “[T]his rule was the best way we could try and provide that clarity.”

McCarthy defended the clean water rule (RIN 2040-AF30) at the National Association of Regulatory Utility Commissioners (NARUC) annual meeting in Austin, Texas. The water rule was jointly promulgated June 29 by the EPA and the U.S. Army Corps of Engineers to clarify which waters and wetlands are subject to Clean Water Act requirements (80 Fed. Reg. 37,054).

“We are confident we took the best science and that we've applied that science appropriately within the Clean Water Rule so that we could successfully defend its merits which you know we will be moving towards at this point,” McCarthy told the assembled regulators.

Preventing Costly Treatment

McCarthy said she wanted to stress that point because there was a “tremendous opportunity to protect headwaters in a way that will prevent very high and expensive pollution treatment further down the pipe when we can get at these prevention opportunities upstream.”

Meanwhile at the National Clean Water Law Seminar in Nevada, water lawyers discussed the myriad lawsuits challenging the water jurisdiction rule.

Sam Brown, senior attorney with California-based Hunton & Williams LLP, said the clean water rule is “weakest” not on constitutional arguments, but on substance and procedure. Brown, who served in the EPA Office of General Counsel, termed the lawsuits as the “mother of all procedure cases” because two appellate courts are still deciding on whether a district or an appellate court is the appropriate venue for hearing the challenges.

Since publication, the rule has been subject to at least 19 lawsuits filed in district and appellate courts.

In October, the rule was stayed nationwide by the U.S. Court of Appeals for the Sixth Circuit, which plans to hold arguments in December to determine whether it even has jurisdiction to review the rule's legality (Ohio v. U.S. Army Corps of Eng'rs. (In re EPA and Dep't of Def. Final Rule), 6th Cir., No. 15-3799, 10/9/15);(197 DEN A-1, 10/13/15).

Brown said it would be interesting to see how the EPA treats stormwater flowing through the Los Angeles River, a mostly concrete channel formed at the confluence of two channelized tributaries. He said the definition of ditches was another area of the rule that can expect to be challenged. With ditches, it's not clear when “you are in until you are out,” Brown said.

He discussed the rule Nov. 5 during a legal roundtable at a legal conference Nov. 4-6 sponsored by the National Association of Clean Water Agencies.

With assistance from Amena H. Saiyid in Washington.

To contact the reporter on this story: Paul Stinson in Austin, Texas, at pstinson@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com