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More States Sue to fight EPA Clean Water Act Rule Changes

— July 8, 2015


Courtesy of the American Farm Bureau Federation
Courtesy of the American Farm Bureau Federation

Mississippi Attorney General Jim Hood announced in a Tuesday press release that his office will be joining 26 other states who have filed four separate lawsuits since last month over rule changes regarding the U.S. Environmental Protection Agency (EPA) enforcement of the Clean Water Act. The legal fight is essentially a territorial battle over which smaller bodies of water fall under federal or state jurisdiction. The EPA rule changes, which were announced on May 27th and set to begin on August 28th, were intended to define the jurisdiction of the Army Corps of Engineers over rivers, lakes and marshes. Although the intent of the changes was to further clarify which bodies of water qualified for the pollution protections afforded by the 1972 Clean Water Act, they have been met with backlash from state officials who generally govern smaller bodies of water. The EPA has stated that the rule changes will only affect waters that have a “direct and significant” connection with larger bodies of water downstream. In Tuesday’s statement, Hood said, “The resulting expansion of federal authority will require the states to establish water quality standards for miles of newly regulated waters, and force state agencies to devote more resources to permitting activities. Landowners, farmers in particular, will have to seek permits or face substantial fines and criminal enforcement actions.”

Mississippi joined Texas and Louisiana in asking a federal judge in Houston last month to declare the rule expanding the definition of “waters of the United States” unconstitutional, claiming that it was an “impermissible expansion of federal power over the states.” Shortly thereafter, thirteen states filed a separate suit in federal court in North Dakota, with Nevada’s Attorney General calling the changes, “unreasonable federal overreach.” Meanwhile, nine other states are suing in Savannah, Georgia federal court claiming that the EPA is violating its constitutional authority. South Carolina Attorney General Alan Wison said in a Tuesday statement, “The results of this rule will carry a tremendous cost to our state, our economy, and our families.” Ohio Attorney General Mike DeWine is joining his Michigan counterpart in a fourth lawsuit in Columbus federal court. DeWine blamed the Obama administration in a statement released last week, saying “This rule clearly violates both the language and the spirit of the Clean Water Act, which recognizes the rights of states to serve as trustees of their natural resources. This is yet another example of the Obama administration overreaching its authority and unilaterally attempting to concentrate power in the hands of federal bureaucrats.” It is unknown at the moment whether or not the separate lawsuits will eventually be consolidated into a single case.

The rule changes were precipitated by a 2014 Supreme Court ruling potentially limiting the EPA’s use of the Clean Water Act unless they clarified the definitions of smaller waterways. EPA officials defend the changes, with agency administrator Gina McCarthy responding, “For the water in the rivers and lakes in our communities that flow to our drinking water to be clean, the streams and wetlands that feed them need to be clean too.” McCarthy continued, “Protecting our water sources is a critical component of adapting to climate change impacts like drought, sea level rise, stronger storms and warmer temperatures — which is why EPA and the Army have finalized the Clean Water Rule to protect these important waters, so we can strengthen our economy and provide certainty to American businesses.” The American Farm Bureau, a major backer of the EPA challenge, has cited the potential additional federal costs on farmers and small business owners. In a statement, the Ohio chapter backed DeWine writing, “It is clear that states, not the federal government, have the lead for advancing water quality through the Clean Water Act. Yet, the rule would give new, expansive authority to the U.S. EPA over drains, ditches and even lands that only contain water when it rains — all under the premise of being ‘navigable waters.’ Attorney General DeWine is right in recognizing this action as a clear violation of states’ rights.”On its website, the agency lists what the rule does and does not enforce, including reaffirming the changes will focus on storm and sewer systems as well as streams; however it will not focus on most ditches, affect private property rights, or place additional requirements for agriculture.




Reuters – Pam Maclean

The Clarion Ledger – Associated Press

The Delphos Herald – Steven Coburn-Griffis

The Hill – Timothy Carma






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