More and more entities are filing lawsuits to force the Environmental Protection Agency and U.S. Army Corps of Engineers to vacate the controversial new rule redefining the scope of federal jurisdiction under the Clean Water Act. The American Farm Bureau Federation, Texas Farm Bureau, Matagorda County Farm Bureau, and 11 other agricultural and industry groups on July 2 asked a federal court to stop eventual enforcement of the waters of the U.S. (WOTUS) rule.
This lawsuit was filed in federal district court in Texas, and reportedly is the second case to be filed in Texas. The state attorney generals of Louisiana, Mississippi and Texas previously filed in Texas, too.
These two lawsuits and three other ones filed separately by additional states basically claim the same thing—the new rule grants EPA and the U.S. Army Corps of Engineers broad control over land use far beyond what Congress authorized in the Clean Water Act. An additional claim is vagueness and over-breadth of the rule violating the U.S. Constitution.
The Texas lawsuit initiated in conjunction with the Farm Bureau also challenges “EPA’s aggressive grassroots advocacy campaign during the comment period, which reflected a closed mind to concerns expressed by farmers and others.”
EPA and the Corps first proposed the rule in March 2014, promising clarity and certainty to farmers, ranchers, builders and other affected businesses and landowners. “Instead we have a final rule that exceeds the agencies’ legal authority and fails to provide the clarity that was promised,” AFBF General Counsel Ellen Steen said. “AFBF filed this lawsuit to do everything we can to protect the interests of farmers and ranchers, but litigation is not a quick or perfect fix. It is long, cumbersome and expensive, and it leaves farmers and others facing immediate harm and uncertainty under this rule.”
AFBF noted that it and others have turned to the courts while a bill currently before the Senate, if passed, would require EPA and the Corps to abandon the rule and conduct a new rulemaking. “Lawsuit or no lawsuit, we need Congress to act,” AFBF President Bob Stallman said. “We need legislation that requires an honest rulemaking from EPA. EPA water regulations must protect water quality without bulldozing the rights of farmers and others whose livelihoods depend on their ability to work the land.”
According to the AFBF complaint, “the Agencies are determined to exert jurisdiction over a staggering range of dry land and water features—whether large or small, permanent, intermittent or ephemeral, flowing or stagnant, natural or manmade, interstate or intrastate.” The “opaque and unwieldy” rule “leaves the identification of jurisdictional waters so vague and uncertain that Plaintiffs and their members cannot determine whether and when the most basic activities undertaken on their land will subject them to drastic criminal and civil penalties under the (Clean Water Act).”
There are a total of five lawsuits that have been announced so far. A total of officials representing 27 states have filed lawsuits.
A group of nine states—West Virginia, Georgia, Alabama, Florida, Kansas, Kentucky, South Carolina, Utah and Wisconsin—has asked a federal district court in Georgia for a preliminary injunction to stop implementation of the rule while the lawsuit is resolved. Ohio and Michigan have a separate suit in Ohio also seeking preliminary relief. Alaska, Arkansas, Arizona, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming filed suit in U.S. District Court in North Dakota.
“We appreciate the leadership and dedication of all the states that have challenged the rule, and we fully support their efforts,” Steen said.
It is a diverse group of non-state organizations cooperating as co-plaintiffs along with the AFBF. They are the American Petroleum Institute, American Road and Transportation Builders, Leading Builders of America, National Alliance of Forest Owners, National Association of Home Builders, National Association of Manufacturers, National Cattlemen’s Beef Association, National Corn Growers Association, National Mining Association, National Pork Producers Council and Public Lands Council.
A copy of the complaint can be found here: http://www.fb.org/tmp/uploads/15%20CV%20165%20Complaint.pdf