Sixteen states on Monday filed lawsuits against the U.S. Environmental Protection Agency, contesting a rule that expands the definition of bodies of water subject to federal pollution controls.
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. It was meant to clarify which waters are protected by the anti-pollution provisions of the 1972 Clean Water Act.
Texas, Mississippi and Louisiana asked a federal court in Houston to declare unconstitutional the Clean Water Act rule expanding the definition of “waters of the United States,” calling it an “impermissible expansion of federal power over the states.”
Louisiana Attorney General James “Buddy” Caldwell said in a statement: “The rule would significantly expand federal authority under the Clean Water Act and jeopardize the private property rights of Louisiana landowners.”
A second lawsuit, brought by a coalition of 13 states, was filed in U.S. district court in North Dakota. Nevada Attorney General Adam Laxalt called the rule “unreasonable federal overreach.”
The EPA said in a statement: “To clearly protect the streams and wetlands that form the foundation of the nation’s water resources, the agencies developed a rule that ensures waters protected under the Clean Water Act are more precisely defined, more predictably determined, and easier for businesses and industry to understand.”
The Clean Water Act grants federal regulatory authority over navigable waters. But the definition of “navigable” is disputed.
The question produced a confusing 2006 Supreme Court decision in Rapanos v. U.S. that held wetlands near ditches or manmade drains emptying into navigable waters are not “waters of the U.S.,” said Caldwell.
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.
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.
Joining Nevada in the North Dakota lawsuit were Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, New Mexico, North Dakota, South Dakota and Wyoming.
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.
(Editing by Kevin Drawbaugh and Steve Orlofsky)