More States Challenge WOTUS: Constitutional Doubts Raised in Lawsuit


by Todd Neeley DTN Staff Reporter

OMAHA (DTN) — Twenty-seven states now have sued the federal government on the waters of the United States rule as nine more states challenged the rule in court, this time in the U.S. District Court for the Southern District of Georgia.

Kansas, Georgia, West Virginia, Alabama, Kentucky, Florida, South Carolina, Utah and Wisconsin have asked the court to vacate the rule on grounds that the Environmental Protection Agency and the Army Corps of Engineers allegedly usurped states' rights to regulate waters.

“This case involves an attempt by two agencies of the federal government to usurp the states' primary responsibility for the management, protection, and care of intrastate waters and lands,” the complaint said. “The federal agencies' assertion of authority should be vacated and enjoined because it violates the Clean Water Act, the Administrative Procedure Act and the Constitution.”

Throughout the public comment period and beyond, states argued that they and not EPA have the primary authority to regulate waters.

The lawsuit names EPA Administrator Gina McCarthy and Assistant Secretary of the Army Jo-Ellen Darcy as defendants.

States that filed a similar lawsuit at the end of June include Alaska, Arizona, Arkansas, Colorado, Idaho, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, Ohio, South Dakota, Texas and Wyoming.

In addition, in recent days a number of agriculture, manufacturing, forestry and oil industry groups filed a legal challenge in a federal court in Texas.

In the latest lawsuit, the nine additional states argue the EPA and the Corps made substantial changes to the proposed rule that appear in the final rule, on which stakeholders did not have an opportunity to comment. In particular, the new lawsuit points to a number of changes to the proposed rule that appear in the final rule.

For instance, the lawsuit alleges the proposed rule called for the coverage of all waters adjacent to navigable waters. The final rule, however, includes “waters within 100 feet of primary waters, impoundments, and tributaries and 100-year floodplain waters with no 'significant nexus' to primary waters; and (4) the definition sweeps in waters within 1,500 feet of the high-tide line of primary waters, impoundments, or tributaries with no 'significant nexus' to a primary water.” The states contend these additions were made without being subject to public comment.

South Carolina Attorney General Alan Wilson said in a news release this week the final rule will be costly to his state.

“The results of this rule will carry a tremendous cost to our state, our economy, and our families,” he said. “Road project mitigation costs alone could range from $180,000 to $2.8 million or fines of $37,000 per day. The EPA's proposed expansion would bring many roadside ditches, small ponds on family farms, water features on golf courses, and storm water systems under extremely burdensome federal regulation. We need more reliable, affordable energy options, not less reliable and more costly ones.”

In addition, the complaint said the final rule does not assure that farms will maintain Clean Water Act exemptions.

“The agencies' decision to exempt farmland from CWA jurisdiction based on 'adjacency' alone and not also exempt farmland under CWA jurisdiction based on the definition of 'tributaries' is arbitrary and capricious in violation of the agencies' statutory duties under the Administrative Procedure Act,” the lawsuit said. “Farmland should be exempt under both categories…

“The final rule also exempts waters on farmland from the per se jurisdictional 'adjacent waters' category and not from the per se jurisdictional 'tributaries' category. The rule does not satisfy the logical outgrowth test because the proposed rule gave no indication that the agencies were considering treating farmland differently as between the 'adjacent waters' category and the 'tributaries' category.”

Read the lawsuit here,




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