State fights ‘burdensome’ clean water regulations

The Bushy Park reservoir, shown here in 2005, is one of three sources in the Santee Cooper river system that provide drinking water for most people in the Charleston area. The S.C. attorney general is challenging a reworking of federal Clean Water Act rules that govern use of those waters.

Fresh from a victory in the Supreme Court over tougher federal Clean Air rules, state Attorney General Alan Wilson has joined eight other attorneys general filing a lawsuit to block Clean Water Act regulations approved by the Obama administration in May.

At stake is control over water quality in smaller streams that feed larger bodies of water that provide drinking water for nearly 2 million South Carolinians, including most utility customers in the Charleston area, and an estimated 117 million nationwide.

The rules are set to take effect Aug. 28.

The regulations “would bring many roadside ditches, small ponds on family farms, water features on golf courses, and storm water systems under extremely burdensome federal regulation,” Wilson said in a news release, arguing that it’s an illegal expansion of federal control over states’ rights.

This fight is an old one, dating back at least a decade to a battle waged over isolated wetlands. And like the recent Supreme Court win over new limits on mercury emitted from coal-fired power plants, this lawsuit might well find its way to the high court.

The lawsuit seeks an injunction to stop the Environmental Protection Agency and the Army Corps of Engineers from being able to decide which smaller waterways fall under federal protection. The regulations are designed to back up state and other federal rules, and could take effect if a proposed use of water or streamside land would pollute or destroy those waters.

Earlier lawsuits led to two Supreme Court rulings that created confusion over just what waters the Clean Water Act regulated. The new rules, according to the EPA, are intended to clear up the confusion. In the release, Wilson said the new rules would expand federal control to “an untold number of small bodies of water” where water might flow only once every 100 years.

The rules limit federal control to larger tributaries that directly feed drinking water streams, and the regulations carry specific exemptions for uses such as agriculture and stormwater, according to the EPA website and conservationists who have studied them.

They expand federal regulation of some waters and restrict others. But they do authorize the EPA and Army Corps to determine which waters are to be regulated, as the agencies do under previous rules.

Wilson declined to respond to questions about the exemptions, citing the pending lawsuit.

“I think a lot of these (lawsuit) claims are just rhetoric. Once the rules ‘go to ground’ (regulations take effect), we’ll see a lot of these claims are just not based in fact,” said Navis Bermudez, Southern Environmental Law Center legislative policy director.

“We don’t think (the new rule) is perfect, but we think it is a lot better than what we had, to clear up the confusion,” she said. “This issue has been litigated many times over the past decade or so. The (new lawsuit) is not surprising.”

In the Lowcountry, wetlands laws and other rules already regulate uses around most waters, and conservation attorneys could not immediately say what difference the new rules might make.

The rules, approved in May, immediately were opposed by agriculture interests and members of Congress. The House has voted to block the regulations. A similar bill is in the Senate. The actions are among a series of legislative and legal attempts to block administration environmental efforts made without legislative input.

“Congress made sure that states would retain their constitutional, sovereign responsibility over non-navigable, intrastate lands and waters,” Wilson said in the release. “The U.S. Supreme Court has twice rejected the agencies’ attempts to expand their authority. However, this latest rule written by two administrative agencies gives them virtually limitless power over these waters.”

The Associated Press contributed to this report. Reach Bo Petersen at 937-5744, @bopete on twitter or Bo Petersen Reporting on Facebook.