Suing over Waters of the United States rules
FRANKFORT, Ky. (June 30, 2015) — Attorney General Jack Conway today announced that he has joined eight other state Attorneys General in a lawsuit asking a federal court to strike down a new rule from the U.S. Army Corps of Engineers and Environmental Protection Agency (EPA) that unlawfully expands the federal government’s regulatory reach over local streams, lands and farms.
The rule, known generally as the “Waters of the United States” (WOTUS) rule, would extend the EPA and Corps of Engineers’ regulatory reach to an untold number of small bodies of water; including roadside ditches, short-lived streams and any other area where the agencies believe water may flow once every 100 years.
“In order to best protect the citizens, farmers, and the taxpayers of the commonwealth, I am challenging this overreaching rule imposed by the EPA,” Conway said. “This finalized rule, in my opinion, is illegal. This overly burdensome rule flies in the face of the tradition of environmental regulation, which is to allow states to develop their own responses in how they deal with what’s required by the Clean Water Act. By challenging this rule, we continue to fight a long-term battle regarding an overreach by the EPA under this administration.”
This rule could have dire consequences for homeowners, farmers and other entities by forcing them to navigate a complex federal bureaucracy and obtain costly permits in order to perform everyday tasks like digging ditches, building fences or spraying fertilizers. Failure to comply with these new regulations could result in fines of up to $37,500 a day.
In the complaint filed today in U.S. District Court for the Southern District of Georgia, the Attorneys General of West Virginia, Alabama, Florida, Georgia, Kansas, Kentucky, South Carolina, Utah and Wisconsin argue the final rule put forward by the EPA and Corps of Engineers violates the Clean Water Act, the Administrative Procedure Act and the U.S. Constitution, and usurps the states’ primary responsibility for the management, protection and care of intrastate waters and lands.
The complaint asks a federal judge to declare the rule illegal and issue an injunction to prevent the agencies from enforcing it. It also asks the judge to order the agencies to draft a new rule that complies with the law.
While the Clean Water Act gave the EPA and Corps authority to regulate “navigable waters”—defined as “Waters of the United States”—Congress made sure that states would retain their constitutional, sovereign responsibility over non-navigable, intrastate lands and waters. This latest rule written by the two administrative agencies, gives them virtually limitless power over these waters. The U.S. Supreme Court has twice rejected the agencies’ attempts to expand their authority (in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers and Rapanos v. United States).