WV AG Leads Legal Efforts to Thwart "Waters of the U.S." Grab by EPA

The rule, known generally as the "Waters of the United States" rule, would extend the EPA and Corps of Engineers’ regulatory jurisdiction to an untold number of small bodies of water, including roadside ditches and short-lived streams or any other area where the agencies believe water may flow once every 100 years.

  

"The way this rule is written creates a series of absurd scenarios for which people can be fined," Morrisey said. "If you dump a wheelbarrow of dirt in the creek bed behind your house, and you don’t get a permit first, you could be fined, even if that creek was never previously subject to federal regulation. This rule expands a scheme whereby property owners have to ask the EPA for permission to do yardwork – it’s regulatory lunacy."

 

Failure to comply with the new regulations could result in fines of up to $37,500 a day. 

  

In the complaint filed Tuesday morning 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 out 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.

  

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. 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). However, this latest rule written by the two administrative agencies gives them virtually limitless power over these waters.

  

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 and honors States’ rights.