You may be ready to leave summer behind, but the events of the last few months will have a lasting impact on the way we protect clean water and wetlands. While we achieved a historic milestone for clean water protections and sportsmen’s access to healthy fish and waterfowl habitat, this victory has since been thrown into question by a number of court cases. Here’s what you need to know about where we stand.
The Clean Water Rule Takes Effect
First, the good news: On August 28, the final clean water rule announced back in May went into effect in 37 states and the District of Columbia. (We’ll get to the other 13 states in just a bit.) This means that most of the country now has greater regulatory certainty and more effective Clean Water Act protections for trout streams, salmon spawning grounds, and duck nesting habitat. It has been a long, contentious process, stretching back nearly 15 years, but it’s a win that all sportsmen should be proud of.
On the downside, 22 lawsuits have been filed to challenge the final rule. This should come as no surprise, since lawsuits are a common response to every significant federal rulemaking. Most of the lawsuits argue that the final rule goes too far, while some of the lawsuits claim that the final rule doesn’t go far enough.
13 States Miss Out
A common request in many of these lawsuits is for a judge to put the final rule on hold, pending the outcome of the legal proceedings. Some courts have declined to issue such an injunction and postponed any further action on these cases, in general, because the federal government would like to consolidate many of the lawsuits into a single challenge. However, three courts decided to rule on the injunction prior to August 28. The Southern District of Georgia and the Northern District of West Virginia courts held that it isn’t their place to issue an injunction because district courts aren’t the right venue for Clean Water Act challenges.
A judge from the District of North Dakota, however, did believe he could decide on challenges to the Clean Water Act and sided with the 13 states asking for an injunction.
On August 27, just hours before the new clean water rule took effect, the North Dakota court put the rule on hold in the 13 states that filed the challenge, but declined a request to extend the injunction to all 50 states. The court reasoned that these 13 states should not be able to force other states that want cleaner water to forego implementation of the new rule.
Here’s the bottom line: Out of the 22 challenges filed, only one court has decided to take action to impede the clean water rule. And you are being denied the benefits of better Clean Water Act protections if you live in one of the following states: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming.
Other States Step Up to Support the Rule
On the bright side, seven states—Connecticut, Hawaii, Massachusetts, New York, Oregon, Vermont, and Washington—and the District of Columbia have joined the litigation in support of the final rule. These states are in favor of the final rule because “it protects their water quality, assists them in administering water pollution programs by dispelling confusion about the [Clean Water Act’s] reach, and prevents harm to their economies by ensuring adequate regulation of waters in upstream states.”
It isn’t clear how long it will take to resolve the ongoing legal battles around this rule. (You know the difference between a good lawyer and a bad lawyer, right? A bad lawyer will drag your case out for years while a good lawyer will make it last even longer.) And in the meantime, members of Congress still have the ability to undermine clean water protections from their seats on Capitol Hill.
Don’t let that happen. Tell your lawmakers that you support clean water. If you want to enjoy better hunting and fishing opportunities, you need to let them know.
