States file lawsuit against EPA's 'Waters of the U.S.' rule

By Daniel Enoch

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WASHINGTON, June 29, 2015 -- Attorneys general from thirteen states filed a lawsuit Monday challenging EPA's new rule defining the waters of the U.S. (WOTUS), asserting 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 joined in the lawsuit, noted that 35 states have filed comments in opposition to the rule and several other attorneys general are considering filing challenges.

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"The EPA is overstepping its congressional authority and seizing rights specifically reserved to the states," Jackley said in a news release. "The EPA is creating uncertainty for our agriculture and business community that needs to have fairness and a degree of common sense in federal regulation."

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. 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. 

Missouri Attorney General Chris Koster also joined in the lawsuit.

“If this change becomes law, thousands of acres of privately owned land in Missouri will suddenly be subject to federal water regulation,” he said in a statement. “Missouri farmers will be particularly harmed by the federal government's restrictions on how their land can be used.”

As an example, Koster said the rule defines tributaries to include ponds, streams that flow only briefly during or after rainstorms, and channels that are usually dry.  The definition extends to lands within a 100-year floodplain -- even if they are dry 99 out of 100 years, he said.

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.

Blake Hurst, president of the Missouri Farm Bureau, praised Koster for challenging the rule.

“If this rule stands, landowners will be subject to onerous permitting requirements and land use restrictions,” Hurst said in a release.

Steve Taylor, president of the Missouri Agribusiness Association, said the group strongly supports the lawsuit. “The EPA's rule ignores the critical concerns of Missouri agribusiness,” he said.

Participating in the filing are the attorneys general from the states of Alaska, Arkansas, Arizona, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.

In response, 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.”

(This story was updated at 6:15 a.m. on June 30.)

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