States Sue Over WOTUS

Lawsuits Filed After EPA Publishes Final Rule on Clean Water Act Changes

Chris Clayton
By  Chris Clayton , DTN Ag Policy Editor
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EPA noted in its waters of the U.S. rule on Monday that all existing exemptions defined under the Clean Water Act remain in place, including exemptions spelled out for agricultural practices. Still, farm groups maintain EPA and the Corps will attempt to regulate ditches or tighten rules on fertilizer applications or spraying crop-protection chemicals. (DTN file photo by Richard Oswald)

OMAHA (DTN) -- Eighteen states wasted no time Monday filing a legal challenge to the new federal rule redefining waters of the United States.

EPA's hotly disputed rule under the Clean Water Act was published Monday in the Federal Register. By Monday afternoon, 18 states had filed lawsuits in federal court to challenge the legality of the new rule. The states asked the court to throw out the rule and prevent EPA or the Army Corps of Engineers from enforcing it.

The states filing lawsuits were Alaska, Arizona, Arkansas, Colorado, Idaho, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, Ohio, South Dakota, Texas and Wyoming.

EPA and the Corps argue the complex, detailed rule will make it easier to define which waters come under their jurisdiction for discharge or earth-moving permits. The rule will create more regulatory control of tributaries to major rivers, such as streams and wetlands.

In their litigation, the states argued they have primary authority over land and water, not the federal agencies. EPA and the Corps are only allowed to regulate certain discharges into federal waters. A redefining of "waters of the U.S." broadens the ability of EPA or the Corps to require water quality standards or limit nutrient loads in waters.

"In general, a broader definition of 'waters of the United States' will place more waters under federal authority," the states noted in their lawsuits. "On the other hand, a more limited definition of the 'waters of the United States' will place more waters under state and local authority."

The new rule's definition of tributaries, "significant nexus" and "ordinary high water mark" are broad and vague, the states argue. Rather than clarifying the Clean Water Act, the states argue the new rule increases complexity for landowners and makes understanding permitting requirements more difficult. The lawsuit cites an eight-step process for landowners to figure out if their land or body of water meets the definition of "adjacent waters."

The states also argue that under the new definitions, state regulators will have to establish water quality standards for miles of newly regulated waters.

EPA noted in the rule on Monday that all existing exemptions defined under the Clean Water Act remain in place, including exemptions spelled out for agricultural practices. Still, farm groups maintain EPA and the Corps will attempt to regulate ditches or tighten rules on fertilizer applications or spraying crop-protection chemicals. The belief is more farmers will find themselves having to get discharge permits because of the expanded rule. Moreover, discharging into a water of the United States without a permit can lead to civil penalties of up to $37,500 per day.

Agricultural groups have been pushing in Congress for a law blocking EPA from implementing the rule. A bill passed the House of Representatives, but it's unclear what the Senate may do. Provisions could be added to EPA funding bills to prevent EPA and the Army Corps of Engineers from implementing the new rule.

Ag groups could also push a legal fight against the rule since it is now final. The rule itself actually stems from a pair of U.S. Supreme Court cases that challenged EPA's and the Army Corps of Engineers' authority regarding permits and Clean Water Act citations.

The American Farm Bureau federation released an analysis earlier this month questioning details in the final rule about distances between tributaries and stream beds, as well as how EPA will determine physical evidence of a tributary. Farm Bureau fears EPA or the Corps will use mapping technology or satellite data to show where a tributary may have once existed but does not now.

The final rule more precisely defines tributaries as waters that are characterized by the presence of physical indicators of flow -- bed and banks and ordinary high water mark -- and that contribute flow directly or indirectly to a traditional navigable water, an interstate water, or the territorial seas. The rule concludes that such tributaries are waters of the United States.

The final rule also addresses the question of what exactly are adjacent waters for the purpose of establishing a "significant nexus" to larger water bodies.

Under a 60-day notice period, the rule goes into effect on Aug. 28.

The full rule can be found here: https://www.federalregister.gov/…

Chris Clayton can be reached at Chris.Clayton@dtn.com

Follow him on Twitter @ChrisClaytonDTN

(AG/CZ)

Chris Clayton