The Swamp Stomp

Volume 15, Issue 28

Attorneys general from thirteen states filed a lawsuit on June 29, 2015 in response to EPA’s new rule defining the waters of the U.S. (WOTUS).  These include:  Alaska, Arkansas, Arizona, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming.  There suit asserts that the rule expands the scope of clean water regulations to lands that are dry much of the year and increases the federal government’s authority over land use.

The case was filed in the U.S. District Court for the District of North Dakota. South Dakota Attorney General Marty Jackley, who is joined in the lawsuit, observed that 35 states have filed comments in opposing the rule and several other attorneys general are considering filing challenges.

In separate filings Texas, Mississippi and Louisiana asked a federal court in Houston to declare unconstitutional the Clean Water Act rule expanding the definition of “waters of the United States,” calling it an “impermissible expansion of federal power over the states.”

In their complaint, the states contend the new definition of WOTUS violates provisions of the Clean Water Act (CWA), the National Environmental Policy Act (NEPA), and the United States Constitution.

The states assert that the EPA’s rule inappropriately expands federal authority by placing a majority of water and land resources management in the hands of the federal government. “Congress and the courts have repeatedly affirmed the states have primary responsibility for the protection of intrastate waters and land management,” Jackley said in his release.

The states argue that the burdens created by the new EPA requirements on waters and lands are harmful to the states and will negatively affect agriculture economic development.

The lawsuit seeks an order declaring the rule is unlawful and prohibiting the agencies from implementing it. Without such an order, the rule takes effect within 60 days.

Ohio Attorney General Mike DeWine is also suing the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers on the behalf of Ohio and Michigan.  He is also focusing on the issue of the states right to regulate interstate commerce waters.

Mr. DeWine stated, “This rule clearly violates both the language and spirit of the Clean Water Act, which recognizes the rights of states to serve as trustees of their natural resources.”

In their complaint, the states contend the new definition of WOTUS violates provisions of the Clean Water Act (CWA), the National Environmental Policy Act (NEPA), and the United States Constitution.

The states assert that the EPA’s rule inappropriately broadens federal authority by placing a majority of water and land resources management in the hands of the federal government. “Congress and the courts have repeatedly affirmed the states have primary responsibility for the protection of intrastate waters and land management,” Jackley said in his release. These states argue that the new requirements created by the new EPA on waters and lands are harmful to the states and will negatively affect agriculture economic development.

These lawsuits seek an order declaring the rule is unlawful and prohibiting the agencies from implementing it. Without such an order, the rule takes effect on August 28, 2015.

In response to these suits, EPA issued the following statement:

“While we can’t comment on the lawsuit, it’s important to remember that EPA and the U.S. Army Corps of Engineers finalized the Clean Water Rule because protection for many of the nation’s streams and wetlands had been confusing, complex, and time-consuming as the result of Supreme Court decisions in 2001 and 2006. In order to clearly protect the streams and wetlands that form the foundation of the nation’s water resources, the agencies developed a rule that ensures that waters protected under the Clean Water Act are more precisely defined, more predictably determined, and easier for businesses and industry to understand.

“One in three people get drinking water from streams that lacked clear protection before the Clean Water Rule. America’s cherished way of life depends on clean water, as healthy ecosystems provide wildlife habitat and places to fish, paddle, surf, and swim. Clean and reliable water is an economic driver, including for manufacturing, farming, tourism, recreation, and energy production. The health of our rivers, lakes, bays, and coastal waters are impacted by the streams and wetlands where they begin.

“In developing the rule, the agencies held more than 400 meetings with stakeholders across the country, reviewed over 1 million public comments, and listened carefully to perspectives from all sides. EPA and the Army also utilized the latest science, including a report summarizing more than 1,200 peer-reviewed, published scientific studies which showed that small streams and wetlands play an integral role in the health of larger downstream water bodies.”