The Swamp Stomp

Volume 15, Issue 31

Eighteen states sued the Obama administration on Monday June 29^th in order to prevent a new regulation establishing federal authority over minor waterways, such as streams and wetlands.

The rule, a product of the Environmental Protection Agency (EPA), has proven to be one of the most controversial regulations passed by the Obama Administration. It redefines how the EPA enforces and regulates the water pollution protections delineated by the Clean Water Act.

The states leading the charge against the new regulation formed three separate groups to file lawsuits in different federal courts, based in Bismarck, North Dakota.; Columbus, Ohio; and Houston, Texas. The states argue that this regulation allows the EPA to overreach its jurisdiction, and violates the clear language used in the Clean Water Act that separated federal authority from that of states or private landowners over waterways.

The attorneys general for the states of Texas, Mississippi, and Louisiana asserted in their lawsuit that “the very structure of the Constitution, and therefore liberty itself, is threatened when administrative agencies attempt to assert independent sovereignty and lawmaking authority that is superior to the states, Congress, and the courts.”

Nebraska Attorney General Doug Peterson said in a statement about the lawsuit he filed with leaders in Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming that “the EPA has redefined ‘waters of the U.S.’ in order to gain greater authority and power over private land.”

Ohio Attorney General Mike DeWine also mirrored this idea when commenting on his lawsuit with Michigan. He said, “This rule clearly violates both the language and the spirit of the Clean Water Act, which recognizes the rights of states to serve as trustees of their natural resources. This is yet another example of the Obama administration overreaching its authority and unilaterally attempting to concentrate power in the hands of federal bureaucrats.”

These may be the first court challenges against the rule, but they will surely not be the last as farmers, developers, business groups, and many others also oppose the rule, which they claim gives the EPA power over almost any piece of land.

Obama’s administration finalized the rule last month in an attempt to regain jurisdiction after two different Supreme Court cases restricted federal regulations. While this rule increases the area covered by the Clean Water Act by about 3 percent, the area remains much smaller than during President Bill Clinton’s administration.

If a waterway is suspect to federal jurisdiction under this new rule, then landowners may need permits for anything that harms or pollutes it.

Gina McCarthy, EPA Administrator, claimed, “We’re finalizing a clean water rule to protect the streams and the wetlands that one in three Americans rely on for drinking water. And we’re doing that without creating any new permitting requirements and maintain all exemptions and exclusions.”

Brian Deese, a top advisor to President Obama, said when describing those in opposition to the rule that “the only people with reason to oppose the rule are polluters who want to threaten our clean water.”

The House has voted to overturn the rule, and the Senate Environment and Public Works Committee has passed a bill to overturn it while also giving the EPA specific instructions to re-write the rule.

Even now that the rule has been finalized by the Obama administration, the end to the battle over the EPA’s rule and the Clean Water Act seems far from close.