Needless to say states have felt left out of discussions, as well as their rights intruded upon, with the publication of the Environmental Protection Agency and Army Corps of Engineers waters of the U.S. rule. Shortly following the publication of the final rule, states loaded their litigating ammunition.
In four different district courts a total of 27 different states have challenged the rule finalized in May, saying it violates the Clean Water Act, the Administrative Procedure Act, the U.S. Constitution and usurps the states’ primary responsibility for the management, protection and care of intrastate waters and lands.
Each complaint asks its federal judge to declare the rule illegal and issue an injunction to prevent the agencies from enforcing it. It also asks the judges to order the agencies to draft a new rule that complies with the law and honors States’ rights. Without action, the rule goes into effect 60 days from publication – August 28, 2015.
One lawsuit was filed in the United States District Court for the District of North Dakota. The states joining the lawsuit were Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.
Ohio attorney general Mike DeWine joined Michigan attorney general Bill Schuette in filing a lawsuit in the United States District Court for the Southern District of Ohio.
A bipartisan coalition filed a complaint Tuesday morning in U.S. District Court for the Southern District of Georgia, on behalf of the attorneys general of West Virginia, Alabama, Florida, Georgia, Kansas, Kentucky, South Carolina, Utah and Wisconsin.
Texas, Louisiana and Mississippi filed a joint lawsuit in a Houston court saying the EPA’s actions are inconsistent with U.S. Supreme Court precedent in SWANCC v. Army Corps of Engineers and Rapanos v. U.S., in which the Court ruled that the federal government exceeded its statutory authority by attempting to regulate areas never intended by Congress. They challenge the rule is contrary to the congressional intent of the Clean Water Act and infringes on the states’ ability to regulate their own natural resources.
Broadens federal authority
The states assert that the EPA's rule wrongly 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, according to Missouri attorney general Chris Koster. In the lawsuit, 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 farmers, developers and landowners.
Koster said that he is concerned that the agencies' definition of "waters of the United States" goes far beyond what a reasonable person would consider to be a waterway. Koster noted, for example, that the new rule defines tributaries to include ponds, streams that flow only briefly during or after rain storms 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.
DeWine added there is concern the overly-broad definition of “waters of the United States” could be used by the federal government to penalize landowners improperly. For example, the definition could be used to penalize a homeowner who remedies standing water on their property if it is within 1500 feet of even a normally dry stream bed.
Failure to comply with the new regulations could result in fines of up to $37,500 a day.
Commodity groups jump in
Producer and land use groups filed a complaint in U.S. District Court for the Southern District of Texas against the Environmental Protection Agency and Army Corps of Engineers over their waters of the United States final rule.
The groups asked the federal court to vacate the controversial new rule redefining the scope of federal jurisdiction under the Clean Water Act. The complaint, filed in federal district court in Texas, claims the new rule grants EPA and the U.S. Army Corps of Engineers broad control over land use far beyond what Congress authorized in the Clean Water Act. The lawsuit also claims vagueness and over-breadth of the rule violate the U.S. Constitution. The groups also challenged EPA’s aggressive grassroots advocacy campaign during the comment period, which reflected a closed mind to concerns expressed by farmers and others.
Co-plaintiffs include the American Farm Bureau Federation, American Petroleum Institute, American Road and Transportation Builders, Leading Builders of America, National Alliance of Forest Owners, National Assn. of Home Builders, National Assn. of Manufacturers, National Cattlemen’s Beef Assn., National Corn Growers Assn., National Mining Assn., National Pork Producers Council and Public Lands Council and Texas Farm Bureau.
Future legislative action
Don Parrish, senior director of regulatory relations at the American Farm Bureau Federation, notes, “Litigation is a long process that does not protect our members from the immediate harm and uncertainty inflicted by the rule. So we remain committed to working for legislation that will require an honest and transparent rulemaking to define waters of the U.S.”
Parrish says AFBF is working to encourage senators to support S. 1140 introduced in the Senate that would direct the agencies to withdraw the rule and develop a new rule in consultation with states and stakeholders. The House passed its version in May.
Congress also can trigger the Congressional Review Act 60 legislative days after a final rule has been released. “Congress can and should stop the final rule in a number of ways,” Parrish adds.