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Flood of Lawsuits Follows EPA's WOTUS Rule

Published on: 21:36PM Jul 06, 2015

The battle over EPA's overreach is headed to courts. The EPA's and Army Corps of Engineers' sweeping new rule supposedly "clarifying" federal jurisdiction over waters of the U.S. (WOTUS) drew a series of lawsuits shortly after its publication.

Three suits representing various groups of state attorneys general are asking separate federal district courts to halt the implementation of the rule. Up to 27 attorneys generals have signed on to one or more of the various lawsuits. One of those suits was filed in a federal district court of North Dakota. A second suit was filed in a federal district court of Georgia. A third suit has been filed in a federal district court of Ohio. The suits filed by the attorneys general focus on the usurpation of regulatory power by the federal government from state governments. The Congress and several federal courts have repeatedly affirmed that regulation of the Clean Water Act is a state government function.

A fourth lawsuit involves various citizen organizations, ranging from the American Farm Bureau Federation and various producer groups to the American Petroleum Institute, Leading Builders of America, American Road and Transportation Builders, National Alliance of Forest Owners, National Association of Home Builders, National Association of Manufacturers and Public Lands Council. The group's suit was filed in federal district court in Texas.

The group's complaint 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.

According to the complaint, “the Agencies are determined to exert jurisdiction over a staggering range of dry land and water features—whether large or small, permanent, intermittent or ephemeral, flowing or stagnant, natural or manmade, interstate or intrastate.” The “opaque and unwieldy” rule “leaves the identification of jurisdictional waters so vague and uncertain that Plaintiffs and their members cannot determine whether and when the most basic activities undertaken on their land will subject them to drastic criminal and civil penalties under the (Clean Water Act).”

Says NPPC President Dr. Ron Prestage, a veterinarian and pork producer from Camden, S.C., “The final rule is vague and fails to let regulated parties know when their conduct violates the law. We’re asking the court to find the rule arbitrary, capricious, an abuse of discretion and not in accordance with law; and to find that it’s unlawful because it’s contrary to constitutional rights and powers, inconsistent with the agencies’ statutory authority under the CWA and was promulgated without following procedures required by law. The bottom line is we want the court to set aside the rule."

“We all want clean water,” he said, “but this rule isn’t about clean water, it’s about EPA and the Corps taking over private property, growing the size of government and micromanaging hundreds of farming and business activities.”

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