Three separate lawsuits have been filed against the U.S. Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Army Corps”) over the final “Waters of the United States” rule (“Final Rule”). The lawsuits were filed in Federal District Court by 1) North Dakota, joined by Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming, the New Mexico Environment Department and the New Mexico State Engineer; 2) the State of Texas, joined by various Texas agencies with jurisdiction over water in the state, Louisiana and Mississippi; and 3) the American Farm Bureau Federation, joined by various farming and industry organizations.
The three plaintiff groups make remarkably similar claims: a) the Final Rule is arbitrary and capricious; b) the agencies are extending their reach beyond the limits of the commerce clause; c) by expanding jurisdiction beyond the “navigable waters,” as defined in the Clean Water Act (“CWA”), agencies are violating the CWA; and d) agencies violated procedural requirements of the Administrative Procedures Act. The 13-state group led by North Dakota also claims violation of the National Environmental Policy Act. In addition, the states argue that the agencies violated state sovereignty under the Tenth Amendment.
The facts driving these claims include the broad definitions of tributary and adjacent water and related claims of jurisdiction over those sources, the agencies’ interpretation of and reliance on the “significant nexus” standard, and the establishment of two categories of water that will be evaluated on a case-by-case basis. Plaintiffs also state that certain parts of the Final Rule were substantively different from the Proposed Rule—beyond the scope of being a “logical outgrowth”—but there was no invitation for additional public comment.
In announcing its lawsuit, the American Farm Bureau Federation (“AFBF”) maintained that the Final Rule failed to remove uncertainty from clean water regulations and harms farmers and ranchers.
“…[W]e have a final rule that exceeds the agencies’ legal authority and fails to provide the clarity that was promised,” AFBF General Counsel Ellen Steen said. “AFBF filed this lawsuit to do everything we can to protect the interests of farmers and ranchers, but litigation is not a quick or perfect fix. It is long, cumbersome and expensive, and it leaves farmers and others facing immediate harm and uncertainty under this rule.”
Texas Agricultural Commissioner Sid Miller characterized the Final Rule as an attack on private property rights.
“By expanding the definition of what constitutes the waters of the United States, the EPA is essentially burying Texas landowners in a mountain of burdensome permitting and paperwork, all of which will be micromanaged by the federal government. Our farmers and ranchers are the original environmentalists, conservationists and stewards of the land. They know how to protect the land far better than some bureaucrat in Washington,” said Miller.
Both Commissioner Miller and AFBF President Bob Stallman are calling on Congress to rein in the agencies.
“While we fight this attempt by the federal government to hijack our private property rights, I encourage Congress to act swiftly to prevent this dangerous attack against landowner rights in our country,” said Miller.
“Lawsuit or no lawsuit, we need Congress to act,” Stallman said. “We need legislation that requires an honest rulemaking from EPA. EPA water regulations must protect water quality without bulldozing the rights of farmers and others whose livelihoods depend on their ability to work the land.”
For additional background on the Final Rule, see “EPA and Army Corps Finalize Rule Defining ‘Waters of the United States,’” JOW June 2015.
Written by Marta L. Weismann