States Sue Over WOTUS

Published July 29, 2015

States Sue Over WOTUS

By Bonner R. Cohen 

The Obama administration’s plan to expand the definition of wetlands in order to increase the number of waterways protected by Environmental Protection Agency (EPA) edicts is running into multiple roadblocks.

            Twenty-nine states are suing EPA and the U.S. Army Corps of Engineers, in two separate lawsuits, over the White House’s “Waters of the United States” (WOTUS) rule, which was implemented on June 29.

            The lawsuits argues EPA has unlawfully expanded federal jurisdiction over state lands and water resources beyond the limits set by Congress under the Clean Water Act (CWA), and it asks the court to grant a permanent injunction to prevent WOTUS from taking effect as scheduled on August 28.

            Rejecting EPA’s claim of prior existing authority over non-navigable waters, a bipartisan coalition of lawmakers in the U.S. House of Representatives passed the Regulatory Integrity Protection Act (RIPA). RIPA would order EPA to withdraw the rule. In addition, House and the Senate appropriators have enacted provisions in budget bills to prevent EPA from spending funds to enforce the rule.

‘No Matter How Remote the Connection’

North Dakota Attorney General Wayne Stenehjem says waterways from tributaries to major rivers, “no matter how remote the connection,” will be regulated under the rule, “as will all wetlands, ponds, lakes, and major waters next to those tributaries,” according to a report in the Jamestown Sun.

            “This federal power grab is unnecessary and unlawful and will do nothing to increase water quality in our state,” Stenehjem said. 

WOTUS History

The new rule contradicts the wording and intent of the enabling legislation on which it is ostensibly based, says Jay Lehr, science director for The Heartland Institute, which publishes Environment & Climate News.

            “When Congress wrote the Clean Water Act, Congress limited its application to ‘navigable waters’ for good reasons,” Lehr said. “Among those reasons, Congress did not want EPA bullying farmers over small depressions in their land that occasionally hold rainwater, bullying people who dig a ditch to help drain their land, and using the smallest of streams and micro-bodies of water to restrict property use. EPA is attempting to stand the Clean Water Act on its head as it continues to seek more money and power.”

            The WOTUS rule stems from Supreme Court decisions in 2001 and 2006 that blocked EPA’s efforts to expand its jurisdiction over “waters of the United States” under CWA. Although SCOTUS’ rulings went against EPA, the language of the decisions was vague, leaving questions open. In the 2006 decision, the court found the CWA applied to streams and wetlands with a “significant nexus” to “navigable waters,” leaving undefined what constitutes such a nexus.

            Failing to get legislation through Congress to expand EPA’s power over waters and wetlands, the Obama administration revised the CWA regulations, insisting the WOTUS rule represents only a clarification of the jurisdiction it already has over bodies of water rather than an expansion of its authority. 

Controlling ‘Ditches, Potholes and Puddles’

Rep. Mark Meadows (R-NC) says WOTUS is an “absurd” and illegal expansion of EPA’s power.

            “Under the EPA’s absurd new WOTUS rule, the agency would have the ability to regulate waters on private lands down to ditches, potholes, and puddles,” he wrote in a June 2 op-ed in The Hill. “EPA Administrator Gina McCarthy told reporters the rule ‘will make it easier to identify protected waters.’ Of course, it would make it easier—it would make nearly all waters in the U.S. EPA-governed waters.”

            “Under the guise of protecting bodies of water, EPA is engaging in a giant land grab,” said Craig Rucker, executive director of the Committee for a Constructive Tomorrow.

            “Landowners[, residential and commercial,] will have to go to EPA to obtain permits to make even the slightest changes to their property, including lengthening or widening a driveway or making an addition to a garage or any other structure on one’s property,” Rucker said. “EPA is determined to introduce federal zoning, and the agency will use WOTUS as the most powerful land-use weapon in its regulatory arsenal.”

Bonner R. Cohen, Ph. D. ([email protected]) is a senior fellow at the National Center for Public Policy Research.