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Will new water law hold up in court?

The scientists who comprise the panel, many of whom were appointed by the Trump Administration, determined the rule ignores prevailing science about the interconnectedness of American waterways.

In December a coalition of 14 states sued the Environmental Protection Agency over its rollback of the Waters of the United States Rule, which was modified last month when President Trump signed the Navigable Waters Protection Rule (see related story).
The states may have gotten some support from a group of scientists affiliated with the EPA.
In a draft letter posted online late last month, the EPA’s 41-member Science Advisory Board found that the new rule “decreases protection for our nation’s waters and does not support the objective of restoring and maintaining ‘the chemical, physical and biological integrity’ of these waters.” The scientists who comprise the panel, many of whom were appointed by the Trump Administration, determined the rule ignores prevailing science about the interconnectedness of American waterways.
The board’s argument made the same case put forward by Pete LaFlamme, director of the Vermont Department of Environmental Conservation’s Watershed Management Division: Pollutants that enter a water system through small an even ephemeral pools and wetlands at its headwaters eventually make their way downstream.
In a Feb. 4 email statement, Vermont Attorney General T.J. Donovan wrote, “The EPA’s proposed ‘Navigable Waters Protection Rule’ would roll back protections my office has fought for years to keep in place … We are considering taking action against the EPA.”
Elena Mihaly, senior attorney for the Conservation Law Foundation in Vermont, said that courts often look at the scientific underlying a rule change to determine whether the change was grounded in science and reason.
“Here, we have the EPA’s own science advisory panel arguing that there is no basis for the change in science,” Mihaly said. “That’s why we believe that there is a strong argument to be made that a court could deem this rule arbitrary and capricious.”
Such a ruling would send the Navigable Waters Protection Rule back to the EPA to be rewritten.
However, says Mihaly, “When you have a robust state law and the federal backdrop goes away, there is always the worry that the rules will become more subject to industry lobbying and other efforts to roll back the standards.”
According to Vermont Agency of Natural Resources Secretary Julie Moore, such changes, though not impossible, would require substantive political will and action.
“Our water quality standards are beholden to statute. Any change to them requires action by the legislature and ultimately a signature by the governor,” she said. “I think that there is broad recognition across the party spectrum that our environment is our economy and we in Vermont go to great lengths to protect our environment in ways many other states have not historically.”

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