Law360, New York (November 2, 2016, 11:16 PM EDT) -- Waterkeeper Alliance, the Sierra Club and other environmental groups urged the Sixth Circuit on Tuesday to make the U.S. Environmental Protection Agency and U.S. Army Corps Engineers fortify the Clean Water Rule, a controversial regulation also under attack from states, municipalities and industry groups.
The Clean Water Rule, published in June 2015, defines what bodies qualify as “waters of the United States” for permitting purposes under the Clean Water Act. After a fierce jurisdiction battle, the Sixth Circuit accepted opening briefs on the merits Tuesday from the environmental groups, as well as the states, industry petitioners and municipalities that want the rule killed. A coalition of environmental groups led by Waterkeeper Alliance Inc. told the court in a brief filed late Tuesday that the rule would result in a “massive net loss” of CWA jurisdiction.
“In the Clean Water Rule, the agencies abdicate federal jurisdiction over potentially thousands of acres of wetlands, ponds, ditches and other waters that provide habitat to aquatic and water-dependent species nationwide,” Waterkeeper Alliance wrote.
In a separate brief, the Sierra Club, National Wildlife Federation, Natural Resources Defense Council and three other environmental groups said the rule illegally writes exceptions into the Clean Water Act. They said the rule expands a statutory exemption for some agriculture-related activities into limits on CWA protections for the waters where those activities occur. They also said the rule unlawfully allows some waters to lose their CWA protections if they are converted to waste dumps.
The agencies also stepped outside of their authority when they categorically denied protection to waters that are more than 4,000 feet from navigable waters or tributaries, the groups said, arguing that waters past that cut-off could qualify for protection based on other factors. They blasted the agencies for choosing the 4,000-foot limit for the purposes of “enhancing regulatory clarity, predictability and consistency.”
“The agencies may not privilege administrative convenience over their statutory duty to protect waters of the United States,” the groups wrote.
Filing their own briefs earlier in the day Tuesday, the states, industries and municipalities challenging the rule told the appeals court that the agencies had no legal foundation for it and that it should be struck down.
The states said the Clean Water Rule regulates waters that the U.S. Supreme Court has already held fall outside the scope of the CWA in two prior cases, improperly including seasonal or isolated tributaries, as well as those misleading termed "adjacent."
The states also said the rule ran afoul of the Administrative Procedure Act and the U.S. Constitution.
The industry challengers echoed the states in arguing that the agencies violated the requirements of notice-and-comment rulemaking by failing to reopen the comment period after making “substantial, unanticipated” changes.
While the Sixth Circuit considers the merits of the case, the U.S. Supreme Court has been asked to review the appeals court's February ruling that it has jurisdiction over the case rather than federal district courts. The states and industry groups had argued the lower courts have jurisdiction, while the federal agencies said challenges belong at the appellate court level.
Waterkeeper Alliance was joined in its brief by the Center for Biological Diversity, Center for Food Safety, Humboldt Baykeeper, Russian Riverkeeper, Monterey Coastkeeper, Snake River Waterkeeper Inc., Upper Missouri Waterkeeper Inc. and Turtle Island Restoration Network Inc.
The Sierra Club, Natural Resources Defense Council and National Wildlife Federation were joined in their brief by One Hundred Miles, Puget Soundkeeper Alliance and the South Carolina Coastal Conservation League.
The states and agencies are Alabama, Alaska, Arizona, Arkansas, Colorado, Georgia, Florida, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin, Wyoming, the North Carolina Department of Environmental and Natural Resources, and the New Mexico State Engineer.
The industry groups include the National Pork Producers Council, American Forest & Paper Association, American Farm Bureau Federation, API, National Mining Association, National Association of Realtors, National Corn Growers Association, National Association of Home Builders, National Stone Sand and Gravel Association, American Road And Transportation Builders Association, Greater Houston Builders Association, Leading Builders of America, Matagorda County Farm Bureau, National Alliance of Forest Owners, National Cattlemen’s Beef Association, Public Lands Council, Texas Farm Bureau, and U.S. Poultry & Egg Association.