On Monday, Arizona joined with Attorneys General from eleven states in filing a lawsuit against the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) over the EPA’s new rule defining “Waters of the United States” under the Clean Water Act. The case was filed in the United States District Court for the District of North Dakota.
In their Complaint, the states contend the new definition of “Waters of the United States” (WOTUS) violates provisions of the Clean Water Act (CWA), the National Environmental Policy Act (NEPA), and the United States Constitution.
“This case involves yet another attempt by the federal government to expand its reach and regulatory authority over issues that are primarily reserved to the States,” said North Dakota Attorney General Wayne Stenehjem.
Arizona State Representative Bob Thorpe stated, “The Waters of the U.S. rule is nothing more than another power grab by the EPA and the Obama administration that will harm Arizona agriculture and citizens, and it is a violation of our state sovereignty. Congress had this bill and chose not to enact it, and now Obama’s EPA is enacting the legislation even though they do not have the authority to do so. I applaud Arizona’s Attorney General and the other states that are taking legal action against the EPA. I will also be running a bill in 2016 that forbids Arizona officials and financial resources from being used to enforce the unconstitutional Waters of the U.S.”
The States assert that the EPA’s new rule wrongly broadens federal authority by placing the management of a majority of water and land resources in the hands of the federal government. Congress and the courts have repeatedly affirmed that the States have primary responsibility for the protection of intrastate waters and land management. 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.
“This increased regulation means increased permitting requirements where permits have not been previously required. The new rule greatly expands and brings numerous isolated bodies of water under the jurisdiction of the EPA and Corps. Due to the high volume in the number of permits, the expected time to obtain a permit will increase. Our citizens cannot afford these costly delays. In addition, failure to get a permit will subject North Dakotans to steep penalties and even jail time.
“This federal power grab is unnecessary and unlawful and will do nothing to increase water quality in our state. It will only burden landowners, ranchers, farmers, and local governments” said Stenehjem.
Also on Monday, Louisiana, and Mississippi filed a joint lawsuit in a Houston federal court, asserting that the EPA’s final rule is “an unconstitutional and impermissible expansion of federal power over the states and their citizens and property owners.”
According to Texas Attorney General Paxton, the move expands the EPA’s jurisdiction, threatening the ability of states and private property owners to use their own land.
“The EPA’s new water rule is not about clean water – it’s about power,” Attorney General Paxton said. “This sweeping new rule is a blatant overstep of federal authority and could have a devastating effect on virtually any property owner, from farmers to ranchers to small businesses. If it moves forward, essentially anybody with a ditch on their property would be at risk of costly and unprecedented new regulations and a complicated web of bureaucracy. Texans shouldn’t need permission from the federal government to use their own land, and the EPA’s attempt to erode private property rights must be put to a stop.”
The EPA’s final rule, Paxton argues, is so broad and open to interpretation that everything from ditches and dry creek beds, to gullies, to isolated ponds formed after a big rain could be considered a “water of the United States.”
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. 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.