18 States Challenge Clean Water Rule

GALVESTON, Texas (CN) - Eighteen states sued the Environmental Protection Agency on Monday, claiming a new rule illegally expanded jurisdiction of the Clean Water Act and diminished states' control over their waters.

Texas, Louisiana and Mississippi sued the EPA and the Army Corps of Engineers in Texas. Thirteen other states sued in Fargo, N.D., and Ohio and Michigan sued in Columbus. Citations from state's lawsuits in this article are taken from the Texas case.

The EPA on Monday adopted the "Clean Water Rule: Definition of 'Waters of the United States,'" to increase the Clean Water Act's "predictability and consistency by clarifying the scope of 'waters of the United States' protected under the Act."

The states claim the rule forces them to spend more time and money getting permits for projects that discharge soil or pollutants into federal waters - permits that have a median cost of $155,000 and can take more than a year to obtain.

Texas says the rule also burdens private landowners, who will have to pay consultants to determine "if there is even a remote possibility that a project may affect a water of the United States" to avoid civil penalties of up to $37,500 per violation, per day, as well as criminal penalties for discharging fill material or pollutants into U.S. waterways without a permit.

The Clean Water Act, of 1972, regulates water pollution and frequently cites "navigable waters" as being under federal purview. It was one of many legislative achievements of the administration of President Nixon, who was viewed at the time as conservative.

"In 1974, the Corps issued a rule defining 'navigable waters' as those waters that have been, are, or may be used for interstate or foreign commerce," the Texas complaint states.

Texas says the last redefinition of the "Waters of the United States" came in 1986 when the Army Corps of Engineers expanded it to include "traditional navigable waters, tributaries of those waters, wetlands adjacent to those waters and tributaries, and waters used as habitat by migratory birds that either are protected by treaty or cross state lines."

From 1986 until Monday, Texas says, the only changes to the definition of U.S. waters came from the U.S. Supreme Court, which reined in federal jurisdiction over wetlands in the 1986 case United States v. Riverside Bayview Homes, and over waters used as migratory bird habitat in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, in 2001.

The Supreme Court rejected the feds' argument that wetlands next to ditches or manmade drains are U.S. waters if they "eventually empty into traditional navigable waters" in the 2006 case Rapanos v. United States, Texas says in its lawsuit.

The new rule expands the definition of tributary so that "dry ponds, ephemeral streams, intermittent channels, and even ditches" fall under federal jurisdiction, Texas says in the complaint.

It also brings waters that have a "significant nexus" to traditional waters under federal control, meaning any water feature that "contributes significantly to the chemical, physical, and biological integrity" to the downstream navigable waterway, Texas says.

Texas claims the defendants violated the Administrative Procedure Act and the Commerce Clause of the Constitution: "The federal agencies violate the Constitution when their enforcement of the Clean Water Act extends beyond the regulation of interstate commerce."

It claims the rule also violates state sovereignty rights under the Tenth Amendment.

It wants the rule declared illegal and its enforcement enjoined.

Ohio and Michigan made similar claims in their lawsuit.

The 13 states that sued in North Dakota made broader claims.

Those states - North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming and New Mexico -claimed the rule also violates the Clean Water Act and the National Environmental Policy Act.

"While we can't comment on the lawsuit, it's important to remember that EPA and the U.S. Army Corps of Engineers finalized the Clean Water Rule because protection for many of the nation's streams and wetlands had been confusing, complex, and time-consuming as the result of Supreme Court decisions in 2001 and 2006," EPA spokeswoman Monica Lee said in an email.

She said the new rule will protect more Americans' drinking water. "One in three people get drinking water from streams that lacked clear protection before the Clean Water Rule."

The EPA and Army used a massive amount of data and public input to develop the rule, Lee said.

"The agencies held more than 400 meetings with stakeholders across the country, reviewed over one million public comments, and listened carefully to perspectives from all sides.

"EPA and the Army also utilized the latest science, including a report summarizing more than 1,200 peer-reviewed, published scientific studies which showed that small streams and wetlands play an integral role in the health of larger downstream water bodies."

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