Today’s court action by Earthjustice on behalf of National Wildlife Federation (NWF), North Carolina Wildlife Federation and Sierra Club opposes industry challenges to a January 2001 rule issued by the Corps of Engineers and Environmental Protection Agency. The rule seeks to protect U.S. waters from discharges associated with landclearing, ditching, channelization and mining. These discharges can cause serious environmental harm, for example by releasing previously buried toxic chemicals and by causing sedimentation harmful to aquatic life.
Industry lawsuits challenging the January 2001 rule were dismissed by the United States District Court for the District of Columbia in March 2004. Industry has appealed that dismissal to the U.S. Court of Appeals for the District of Columbia Circuit.
“For many years Industry argued that small discharges should be exempt because they may have little effect on U.S. waters,” said Earthjustice attorney Howard Fox. “Now Industry has abandoned its prior position, and is arguing that large discharges should be exempt too. While this flip-flop shows an impressive ability to execute a 180-degree turn, it's bad news for our rivers, lakes, and wetlands that will be on the receiving end of toxic contaminants and sedimentation.”
In 1999, EPA reasoned that the destruction of almost 30,000 acres of wetlands in a nine-month period due to unpermitted discharges of dredged material warranted a rule to help protect against future harms. After seeking comment from the public, the agencies issued the January 2001 rule, which industry groups challenged in court.
“We are simply asking the court to affirm an important aspect of the Clean Water Act’s safeguards for public health and wildlife,” said Jim Murphy, Wetlands and Water Resources Counsel with NWF. “When core water quality protections are removed, we all pay the costs of dirty water.”
The Clean Water Act defines pollutants to included dredged spoil, as well as various components thereof, including rock, sand, cellar dirt and biological materials. Under the law, addition of these materials to United States waters from a point source qualifies as a discharge of a pollutant -- which is prohibited absent a permit.
“Previous courts have upheld the Corps' and EPA's authority to regulate discharges associated with landclearing, ditching, channelization, and mining,” said Fox. “Industry is swimming upstream in its effort to argue otherwise.”
The brief was filed in National Association of Home Builders v. United States Army Corps of Engineers, D.C. Cir. 04-5221. .