13-state lawsuit to challenge EPA's Waters of the U.S. rule

13-state lawsuit to challenge EPA's Waters of the U.S. rule

Attorneys General from 13 states announce lawsuit alleging the U.S. EPA and Army Corps Waters of the U.S. rule expands federal land control

Attorneys General from 13 states say the U.S. EPA and Army Corps of Engineers' definition of "Waters of the U.S." violates provisions of the Clean Water Act, the National Environmental Policy Act, and the United States Constitution – and they're prepared to fight it, legally.

Related: EPA releases final Waters of the U.S. rule

The state AGs filing include: Alaska, Arkansas, Arizona, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming.

Attorneys General from 12 states announce lawsuit alleging the U.S. EPA and Army Corps Waters of the U.S. rule expands federal land control

The lawsuit, filed in United States District Court for the District of North Dakota, 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.

The AGs assert that the EPA’s new rule "inappropriately broadens federal authority by placing a majority of water and land resources management in the hands of the federal government," South Dakota AG Marty Jackley's office said.

Related: NCBA warns of lawsuit over Waters of the U.S.

The States further 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 AG Chris Koster said the agencies' official definition of "waters of the United States" extends the agencies' regulation far beyond what a reasonable person considers to be a waterway. For example, Koster says 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, his office says.

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"The EPA and the Army Corps have exceeded their legal authority in defining what constitutes U.S. waterways," Koster said. "If this change becomes law, thousands of acres of privately owned land in Missouri will suddenly be subject to federal water regulation. Missouri farmers will be particularly harmed by the federal government's restrictions on how their land can be used."

The states' challenges add to existing challenges from lawmakers; The Senate Environment and Public Works Committee has this month approved a bill to rewrite the WOTUS rule, while the House in May also approved a WOTUS withdraw bill with a 261-155 vote.

The rule is also met with significant opposition from ag groups, which long fought for its elimination, even before the final rule was released.

Blake Hurst, president of the Missouri Farm Bureau, an American Farm Bureau Federation affiliate, said his group applauds the challenge and suggests consequences should the law remain intact.

"If this rule stands, landowners will be subject to onerous permitting requirements and land use restrictions," he said.


Catch a legal perspective on the rule with ag attorney Gary Baise's "Inside EPA's Waters of the U.S. Ruling" series:
Part one: What you should know about the EPA ruling
Part two: Understanding 'significant nexus'
Part three: Does this impact private property rights?
Part four: The government's boundless appetite for regulation


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