By Madeline Urbish
A total of 27 states had filed a total of four lawsuits against the Environmental Protection Agency (EPA), challenging the Waters of the United States rule finalized by the agency earlier in the month. In four separate cases, the plaintiffs argue that the rule unlawfully expands the federal government’s power over the states by imposing the new rule under the Clean Water Act. The states include Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, Ohio, South Carolina, South Dakota, Texas, Utah, West Virginia, Wisconsin, and Wyoming.
The Waters of the U.S. rule clarifies the status of waters located in isolated areas, including tributaries, wetlands, and waters “adjacent” to traditional navigable waters. The finalized rule provides for individual assessments to determine whether or not these adjacent wetlands fall under Clean Water Act jurisdiction. It also clarifies that “other waters” subject to jurisdiction include those with a significant connection to a traditional navigable water within the 100-year floodplain or within 4,000 feet of a body of water already under Clean Water Act jurisdiction.
In North Dakota v. U.S. EPA, the plaintiffs claim the EPA violated Clean Water Act in developing the Waters of the U.S. rule, from failing to consult with states prior to finalizing the rule to unlawfully expanding federal authority. Specifically, the complaint refers to language in the act that instructs the EPA to “recognize, preserve, and protect the primary responsibilities and rights of States…to plan the development and use…of land and water resources.” According to the complaint filed on June 30th, the lack of coordination with states violated federalist principles included in Clean Water Act language. “It is the policy of the Congress…to protect the…rights of States…to consult with the Administration in the exercise of [her] authority under” the act. Furthermore, the plaintiffs argue the final rule approved by the EPA will require “the expenditure and commitment of additional state resources,” yet the EPA did not meaningfully consult with the states during the rule’s development.
Similarly, the State of Georgia vs. U.S. EPA case filed on June 30th also argues the final rule violates the Clean Water Act, as well as the Administrative Procedure Act and the Constitution along similar lines. In its complaint, the plaintiffs are that the states involved “take extremely seriously their right and duty to protect the water and land resources within their border,” and that the EPA’s Waters of the United States rule violates that authority. The states of Ohio and Michigan make similar complaints in their case filed on June 29th, arguing the rule injures the states as landowners, regulators, and “trustees of the natural resources of the States.”
In State of Texas v. U.S. Environmental Protection Agency case, the plaintiffs argue the rule expands federal power over the states and their citizens in violation of the Constitution. According to the complaint filed with the U.S District Court of Southern Texas, the plaintiffs claim the final rule is an attempt by federal agencies to circumvent the legislative process, and substitute their own judgment for decision by Congress, the courts, and the states.
States, along with the agriculture industry and Republican lawmakers, have been arguing that the EPA’s rule on waterways will extend federal control over large portions of private or state-owned water and land since the proposed rule was first made public. The Farm Bureau has been very active to opposing the Waters of the U.S. rule, claiming the rule would hurt small farmers and the larger agriculture industry. Additionally, the National Association of Counties argued that counties and local governments would see their public infrastructure, including roadside ditches, flood control channels, and stormwater management systems come under federal jurisdiction.
According to the EPA, only three percent more acreage of wetlands and stream miles will come under the Clean Water Act jurisdiction. Environmental groups, including the Sierra Club, the National Wildlife Federation, and the National Resources Defense Council, have applauded the effort and argue it will protect the country’s water systems and supply.
In May, the House of Representatives passed the Regulatory Integrity Protection Act of 2015, which would require the EPA to withdraw its Waters of the U.S. rule and restart the process. On June 10th, a Senate committee approved bill S. 1140, which would overturn the new rue and order the EPA to go back to the drawing board. Both the House and Senate bills have received support along party-lines, with Democrats opposed to the measure. Additionally, both the House and Senate versions of the Energy and Water Development Appropriations bills include language to reverse the EPA’s efforts.
For a more detailed background on the Waters of the U.S. issue, see Bill to Withdraw Waters of the U.S. Rule Passes House.