FARGO, N.D.—Clean water matters. That’s the message delivered to a federal court by fly-fishing guides, charter boat operators, craft brewers, and city mayors and council members, all in favor of the Clean Water Rule.
NELC, in partnership with Environment America, filed two briefs in the North Dakota federal district court on July 23, one on behalf of 157 small business operators, and the other on behalf of 62 state and local elected officials. The amicus curiae, or “friend of the court,” briefs asked the court to uphold EPA’s Clean Water Rule, a 2015 regulation issued by EPA and the Army Corps of Engineers that helps protect drinking water sources for 1 in 3 Americans.
North Dakota, together with 12 other states, filed a lawsuit in 2015, asking the court to set aside the rule as too protective. The Clean Water Rule has traveled a circuitous path since then. Another challenge to the rule was filed by a coalition of industry groups and other states in the 6th U.S. Circuit Court of Appeals in Cincinnati, and that court eventually issued an order postponing implementation of the rule (and halting other challenges) until it made a decision.
In January 2017, the federal government filed a lengthy brief in that court providing a detailed defense of both the legal and the scientific basis for the rule. After taking office days later, however, President Trump directed the agencies to reverse course, and announced his intention to revoke the rule and replace it with one providing much narrower protections.
Meanwhile, the question of the 6th Circuit’s jurisdiction to hear the case was taken to the U.S. Supreme Court, and that court ruled in January 2018, based on the express language of the Clean Water Act, that only the U.S. district courts could hear challenges to the rule. This allowed the North Dakota case, along with other district court litigation regarding the rule, to go forward. In July, the U.S. Department of Justice filed a brief urging the North Dakota court to postpone any ruling until the agencies issued a final version of the rule—likely a weaker version—in 2020.
The amicus briefs filed by NELC, however, urged the court to decide the case now, and to uphold the original rule as fully consistent with both the Clean Water Act and the Constitution.
“It’s not just environmentalists who understand that water is vital to our ecology, our health and our quality of life,” said John Rumpler, Environment America’s senior campaign director. “There are many families, small business owners and elected officials who want our water protected.”
In their amicus brief, small business owners shared why the rule matters to them. “We can’t make good beer without clean water,” said Ryan Naylor, marketing manager at One World Brewing in Asheville, North Carolina—one of 23 craft breweries to sign on to the brief.
Andrew Johnson, a Minneapolis city council member who signed on to the elected officials brief, believes that the Clean Water Rule’s inclusion of ephemeral and intermittent streams and related wetlands is critical to the health of the watershed network that feeds and cleans the many lakes within his city’s borders.