Twenty-four U.S. states have joined forces to sue the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers over a new, stricter rule regulating Waters of the United States (WOTUS) under the 1972 Clean Water Act (CWA).
The plaintiff states argue the rule is a clear overreach of EPA powers, regulating intrastate water, creating undue confusion, and burdens on states, landowners, energy producers, and farmers.
The new WOTUS rule revises the definition of “Waters of the United States,” expanding its meaning, similar to a revision by the EPA during the Obama administration, in 2015. The Obama-era rule removed the term “navigable” from the definition, which opened up more bodies of water, such as temporary streams and water-filled ditches, to federal regulation.
The 2015 WOTUS rule never took effect because federal courts stopped its implementation. Subsequently, the Trump administration pass a different revision, which reinstated some protections for property rights and drew clearer boundaries for when and what types of action might generate the need for federal permitting.
‘Unlawfully Aggressive’
Although some exemptions are listed by the EPA’s Agricultural Community Fact Sheet, state representatives say the new rule represents a usurpation of states rights, and limits the ability of landowners to do work on their properties.
The lawsuit is being co-led by Attorneys General of West Virginia, Georgia, Iowa, and North Dakota, and was filed in a North Dakota federal district court in February. The text of the lawsuit frames the EPA’s new rules as an effort to reinterpret the EPA’s authority to regulate waters and wetlands under the CWA in “an unlawfully aggressive way.”
The states also take issue with the agencies’ “rush” to issue the latest WOTUS rule, as the Supreme Court is expected to issue a decision in Sackett v EPA, which also deals with the expansive definitions in WOTUS.
“Primary Responsibilities and Rights of States”
In a press release, West Virginia Attorney General Patrick Morrisey said the expansive rule is nothing new from the EPA; they have been trying to wrest control from the states and private property owners for decades.
“This new final rule is a decades-long effort by the EPA to regulate purely intrastate waters without the explicit consent of Congress,” Morrisey said. “This is yet another attempt from unelected bureaucrats to expand their own authority by broadly defining Waters of the United States.”
The plaintiff states say individual states have a right to manage their own resources, and the original text of the CWA affirmed that right.
“All States—including the 24 States here—have a sovereign interest in managing, protecting, and caring for their land and water resources,” states the complaint. “In fact, when Congress passed the Clean Water Act in 1972, it simultaneously sought to ‘recognize, preserve, and protect the primary responsibilities and rights of States’ as to pollution mitigation and ‘the development and use…of land and water resources.’ (Emphasis in original)
‘Waging War’ Against Farmers
The plaintiffs also argue farmers, ranchers, homeowners, miners, energy providers, and other businesses will be burdened unfairly.
The costs associated with compliance, like applying for permits, are unnecessary given the kind of bodies of water involved, say the plaintiffs.
“The Final Rule forces them to pay costly consultant and other fees merely to continue to conduct ordinary activities on their lands—even in cases where those activities could have no significant impact on navigable, interstate waters,” the lawsuit states.
‘A Huge Infringement’
The WOTUS revisions are unsurprising, and reveal the Biden administration’s priorities are directed toward appeasing activists rather than helping farmers, says Craig Rucker, president of the Committee For A Constructive Tomorrow.
“This administration has once again shown itself to be in lockstep with the radical environmental left that has been waging war for decades against hard working farmers,” Rucker said. “Rolling back the WOTUS regulation and basically reimposing the absurd rules put in place under President Obama gives federal bureaucrats the green light to regulate virtually every ditch and mud-puddle on agricultural land.
“It is a huge infringement on private property rights, so let’s hope the state AGs launching this suit prevail in overturning this outrageous land grab,” Rucker said.
Linnea Lueken (llueken@heartland.org) is a research fellow with the Arthur B. Robinson Center on Climate and Environmental Policy at The Heartland Institute.
For more on WOTUS, click here.
For more on wetlands, click here.