HOUSTON, TX—On January 19, NELC Attorneys Heather Govern and Chuck Caldart filed two amici curiae (friend of the court) briefs with the U.S. Court of Appeals for the Sixth Circuit, which is hearing challenges to the “Waters of the U.S.” rule issued jointly by the U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers. The regulation, also known as the “Clean Water Rule,” was issued in 2015 to clarify the jurisdictional scope of the Clean Water Act by identifying the types of waterways subject to the act’s protections.
Although the rule is supported by an extensive administrative record, including a report authored by a group of respected scientists that reviews some 1,200 peer-reviewed studies, it was immediately challenged in court by business and government groups who argue that it is too expansive. One such challenge was filed by the Oklahoma attorney general, Scott Pruitt, who has since been confirmed as EPA administrator.
NELC’s amici briefs voices strong backing for the rule. One of the briefs was filed on behalf of 234 small business founders, owners, and operators from across the nation who depend on clean water for the success of their businesses. The second brief was filed on behalf of 79 local elected officials who have an interest in protecting the quality of their municipalities’ water supplies and in protecting the quality of both their municipalities’ water supply and nearby watersheds.
The federal agencies themselves filed a 246-page brief on January 12 providing a comprehensive and spirited defense of the rule. Yet barely a month after taking office, President Trump issued an executive order on February 28 directing those same agencies to withdraw the rule.
Any such withdrawal, however, will be subject to court review. It will be up to the courts to determine whether the scope of the Clean Water Act will be determined by science and law, or by rank politics.