Lawsuits Quickly Follow EPA's New Water Regulation

Update -

July 30, 2015 - The U.S. Army Corps of Engineers released memos about the EPA's role in the water rule.

Responding to a request from the House Committee on Oversight and Government Affairs, the corps released eight memos that question the EPA's hearing process.


States Versus Feds In Water Rule Challenges

Legal opposition is mounting against the Environmental Protection Agency's Water rule, with more than two dozen states joining lawsuits asking Federal judges to overturn it. Also environmental groups have filed a petition for review saying that the new rule allows too many loopholes in existing water protection laws and thus diminishes protection of US Waters.

Tennessee on July 23 joined an amended complaint of a lawsuit already filed by Ohio and Michigan against the rule.

Recently Indiana and Oklahoma announced they would sue the US Environmental Protection Agency over the rule, joined states ranging from Florida to Alaska that have filed constitutional challenges to the EPA's new rule. The states allege that the new rule would unconstitutionally expand EPA jurisdiction over the number and types of waterways in the United States.

On June 29 the EPA published a long awaited "Waters of the United States" rule, sometimes abbreviated as WOTUS. The rule defines the types of tributaries and headwaters that the EPA believes it can regulate under the Clean Water Act. Some of the waterways that fall under this definition are very small, and some only flow with water after precipitation.

The EPA said the rule is necessary to protect major water sources from the accumulation of pollution from smaller streams and certain kinds of ditches. It also says that the new rule clears up uncertainty about the type of waterways subject to Federal Clean Water Act.

States opposed to the rule, which they criticized as "federal overreach," began filing suits immediately. Four different legal actions, each with its own constituency of plaintiff states, have been filed in Federal courts throughout the country.

State Suits Allege Violations of Commerce Clause, 10th Amendment

The Indiana Attorney General statement summarizes the states' assertions that the WOTUS rule violates the Constitution's Commerce Clause and its 10th Amendment.

The Commerce Clause gives the Federal government power over interstate commerce. This jurisdiction gives the EPA the power to regulate waterways that flow between states or that otherwise are clearly connected to interstate commerce. But the plaintiff states assert that the new Water rule incorrectly grants power over waterways that are solely within the boundaries of a single state and are therefore properly the domain of state regulations.

The 10th Amendment says that powers not granted to the federal government by the Constitution are reserved for the states.

Georgia filed its against the EPA on June 30, and with the addition of Indiana it has garnered a list of complainants that are very wide-ranging in their water law and usage profiles.

On July 8, Oklahoma filed its own lawsuit in federal court.

At the beginning of this article is a map of the continental United States that displays which states are party to which lawsuits. Texas, Mississippi and Louisiana filed suit in the Federal Southern District of Texas over the suit. Thirteen others filed suit in the District to North Dakota. Text of the original complaints are below the map.

Industry Groups File Their Own Lawsuit

Several industry groups, such as homebuilders, cattlemen, road builders and the American Petroleum Institute, have filed their own complaint: S.D. Texas 15cv165.

The groups also argue that the rule violates the Commerce Clause of the Constitution. But instead of relying on a 10th Amendment challenge, as did the states, the trade groups allege that that the rule further violates the Due Process Clause of the 5th Amendment. They say the rule, despite the EPA's assertions, has failed to clarify which waterways are subject to regulation. This, they say, unfairly puts them at risk of prosecution for land and stream alterations that are not clearly defined as illegal.

Environmentalists Ask for Review, Plan A Related Suit

On July 22, several environmental groups asked the U.S Ninth Circuit Court of Appeals to review the rule. Unlike the states and trade groups who allege the rule is too stringent and over expansive, the environmentalists argue that it actually has limited the number of waters that are covered by protection.

The groups filing for review are the Waterkeepers Alliance Inc., the Center for Biodiversity, the Turtle Island Restoration Network, and the Center for Food Safety.

"Petitioners are directly affected and injured by EPA’s issuance of the Final Rule because that action has and will have adverse impacts on Petitioners’ and their members’ interests in the use, enjoyment, and preservation of the waters of the United States," the short petition for review said. (US 9th Cir 15-72226).

The groups plan to file a parallel suit in a US District Court soon.

Other Filings Since First Round

The US Chamber of Commerce, along with the National Federation of Independent Business, the Portland Cement Association and the Oklahoma and Tulsa chambers of commerce, July 13 filed suit in Oklahoma. N.D. Ok. 15cv386. In addition to making similar allegations as the other lawsuits, the Chamber's suit also alleges that the final water rule violates the Federal Regulatory Flexibility Act.

On July 15, state cattlemen's associations from Washington, California and New Mexico along with real estate businesses and others filed suit in Federal Court in Minnesota. D. Minn. 15cv3058 The lawyers for the plaintiffs are from the Pacific Legal Foundation, a self-described conservative and libertarian legal foundation. PLF was involved in the 2006 Rapines v, United States case, which was the most recent was the most recent decision by the US Supreme Court about the Federal government's jurisdiction over waters in the United States.

Hydrology of the Plaintiff States; or Reasons States Think Water Politics Are Local

Opponents of the Water rule have argued that the nature of waterways varies greatly across the United States, and that states, for this reason, are better suited to regulating them. The differences sometimes lie within a state's law as well as its geology. Although some of these differences are not spelled out in the complaints filed against the EPA, the regional water politics do shed light on why the issue is so profoundly divisive.

Most of the 13 parties to the North Dakota action are western states that have adhere to "appropriation" rules of water distribution. In these states water is considered property of the state and its citizens; private property owners may use it in accordance with state law and with state permits that take about a dozen factors into consideration. One of the most important factors is when the permit was first issued; people holding newer permits are the first to have their water curtailed during shortages, and older "priority" claims are the last. Disputes over allocations or permits are handled by special water courts in these states.

States east of the Mississippi River typically adhere to the "riparian" theory of water, that does not allocate water usage as precisely as appropriation laws, but does gives downstream users have some protections from deprivation or pollution from upstream users.

The states party to the Georgia suit are very wide-ranging in their water law and usage profiles, and the parties include both eastern riparian states and western appropriation states. It is the only suit that includes states with an Atlantic Ocean coast. Opposition to the EPA Water rule was strong enough to bring together as co-complainants the states of Georgia, Alabama and Florida. These three states have had their own long-standing legal battles over how much water one state or the other is entitled to draw out of the region's rivers.

The Pacific coast states on the continental US have not yet filed or joined suits over the water rule.

EPA Maps Out its Rationale for the Rule

The EPA has said that may types of small waterways are connected to larger water ways. These larger streams, rivers and lakes are important sources of drinking and industrial water.

The new WOTUS rule, which goes into effect in August, would specify that streams that only flow seasonally would fall under the jurisdiction of the EPA's Clean Water Act. In January 2015 the EPA issued a Connectivity Report that outlined its scientific evidence and arguments for the interconnectedness of small waterways with larger waterways.

The states are arguing that these smaller streams are not always sufficiently connected to interstate waters to justify Federal regulation. But the EPA counters that many of the smaller streams, even the seasonal ones, can be shown to be interconnected to Federally-protected ones.

Thus, both sides of the case have elements of geological science and political interpretation of the Constitution intertwined in their arguments.

The EPA has released the map below that shows counties where populated areas, primarily cities and towns, receive drinking water that comes from the types of streams that the WOTUS rule would regulate. The counties colored in blue show the statistics of how many people obtain drinking water and, of those, how many obtain that drinking water from streams that flow only seasonally.

Map by the Environmental Protection Agency

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