A dozen states have joined a lawsuit against federal rules clarifying and expanding the reach of the Clean Water Act (CWA) that were published Monday in the Federal Register, asking for the rules to be remanded to federal agencies for reworking.
The Obama administration's Clean Water Rule (CWR) extends regulatory protection to smaller upstream rivers and creeks. The oil and gas industry, manufacturers and Republican majorities in both houses of Congress oppose the changes (see Shale Daily, May 27).
The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers created CWR to clarify the definition of what constitutes Waters of the United States and CWA protection.
Wyoming Gov. Matt Mead, who has opposed the CWR since it was first proposed, said he was helping lead the coalition of 12 states in the joint complaint filing in the U.S. District Court for the District of North Dakota.
Mead said when he saw the original draft rule "it was so flawed I asked the [federal] agencies to withdraw it. Nonetheless, [they] charged ahead without addressing significant concerns raised by Wyoming and other states."
“In failing to consult with the states, the [federal] agencies did not take into account the unique ecological, geological, and hydrological differences amongst all states and have ignored the scientific expertise of the state regulators charged with protecting state resources under both federal and state law,” the joint filing said.
North Dakota Attorney General Wayne Stenehjem called the EPA action "another attempt by the federal government to expand its reach and regulatory authority over issues that are primarily reserved to the states."
Stenehjem said the joint filing asserts that EPA's new rule wrongly broadens federal authority by placing management of a majority of water and land resources in the hands of the federal government, despite the fact that Congress and the courts "repeatedly" have affirmed the states as having primary responsibility.
Colorado Attorney General Cynthia Coffman said the joint complaint alleges that the new definition of U.S. protected waters violates provisions of the CWA, National Environmental Policy Act, and the U.S. Constitution. "Water is perhaps the most critical resource Colorado manages, and we do it very well," Coffman said.
Mead said the CWR expands the reach of federal agencies to lands and waters beyond the bounds set by Congress, and it is "wrong for Wyoming and every state, and for the United States," along with being "unlawful."
Joining in the court filing are North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, and Wyoming, along with the New Mexico Environment Department and New Mexico State Engineer.
Last year, EPA and the Army Corps of Engineeers said that U.S. Supreme Court rulings in 2001 and 2006 had created confusion over how the CWA should protect streams and wetlands (see Daily GPI, March 26, 2014).