Four separate multi-state lawsuits have been filed against the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) over the recently-finalized rule changing the definition of “Waters of the United States” under the federal Clean Water Act since the rule’s publication in the Federal Register on Monday.
The first lawsuit was filed in North Dakota by Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, New Mexico, Nevada, North Dakota, South Dakota, and Wyoming to seek an injunction against the rule, and, ultimately, to fully overturn it on the grounds that it is an unlawful and unconstitutional expansion of federal power. Three similar suits have followed, one involving the states of Alabama, Florida, Georgia, Kansas, Kentucky, South Carolina, Utah, West Virginia, and Wisconsin, the second with Texas, Louisiana, and Mississippi as plaintiffs, and the third with Ohio and Michigan joining together.
The lawsuits are not unexpected after the controversy and bipartisan opposition surrounding the rule during its development. While the final rule does address some of the issues raised by RCRC and other stakeholders during public comment by providing explicit exemptions for storm water control features and waste water treatment systems, the rule still allows EPA and the Corps significant leeway in determining whether other, non-exempt waters have a significant nexus to federal waters. Even with the pending legal action, Congress still has two bills, S. 1140 and H.R. 1732, that would repeal the rule and force EPA and the Corps to redraft it with enhanced stakeholder input. Congress has also placed riders on two budget bills that would effectively stop the rule by defunding its implementation. If the lawsuits are unsuccessful in enjoining the rule, it will become effective on August 28, 2015.