Posted June 30, 2014
Sixteen states have filed lawsuits against the U.S. Environmental Protection Agency (EPA), contesting a rule that expands the definition of bodies of water subject to federal pollution controls, according to a Reuters article available here. Feedstuffs also published an article available hereand Brownfield Ag News here.
The actions are a coordinated challenge to an EPA rule issued on May 27 that defines the jurisdiction of the EPA and the U.S. Army Corps of Engineers over rivers, streams, lakes or marshes, which was meant to clarify the waters protected by the anti-pollution provisions of the 1972 Clean Water Act (CWA).
There are two lawsuits, one was filed in the United States District Court for the District of North Dakota and the other in Texas. The states joining the lawsuit are Alaska, Arizona, Arkansas, Colorado, Idaho, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, Texas and Wyoming, according to Feedstuffs.
In the lawsuit, the states contend the new definition of “Waters of the United States” violates provisions of the CWA, the National Environmental Policy Act, and the United States Constitution. Missouri attorney general Chris Koster said that without such a ruling, the law would take effect 60 days after the rule was published.   
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.
Missouri Attorney General Chris Koster, who joined the suit, says the official definition by EPA “extends the agencies’ regulation far beyond what a reasonable person considers to be a waterway,” according to Brownfield Ag News,
Missouri Farm Bureau President Blake Hurst says he’s pleased Missouri’s and other Attorney’s General have taken this action, ”Which is a pretty good indication of how upset people are about the rule. There is a great deal of hope out in farm country that he’ll be successful with this court case.”
Congress and the courts have repeatedly affirmed the states have primary responsibility for the protection of intrastate waters and land management, according to 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, according to Feedstuffs.
The new EPA rule would extend federal jurisdiction over tributaries that may be natural, man-altered or man-made, including canals and ditches, said the complaint filed in Texas, according to Reuters.
The rule fails to account for duration of water flow, suggesting federal agencies can assert jurisdiction over “dry ponds, ephemeral streams, intermittent channels and even ditches,” the Texas lawsuit stated.
One case is State of Texas v. U.S. Environmental Protection Agency, in U.S. Southern District of Texas, No. 15-cv-162. The other is North Dakota v. U.S. EPA, No. 15-59 in Federal District of North Dakota.
For more information on the Clean Water Act, please visit the National Agricultural Law Center’s website here.