EPA Water Rule Decision Prompts Lawsuit from 13 States

Thirteen states, including Alaska, are challenging an Environmental Protection Agency decision that defines waters covered under the Clean Water Act, puts them under federal jurisdiction and subjects them to permitting.

The 23-page complaint filed in the US District Court in North Dakota names the EPA and US Army Corps of Engineers, and seeks to have the final rule on waters of the United States, or WOTUS, declared unlawful.

The states of Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming contend that WOTUS violates the Clean Water Act, the National Environmental Policy Act and the Administrative Procedure Act, extending congressional authority beyond the limits of the Commerce Clause and interfering with state sovereignty.

The EPA sees the Clean Water Rule as a way to ensure that waters protected under the Clean Water Act are more precisely defined, more predictably determined, and easier for business and industry to understand. The new rule defines and protects tributaries that affect the health of downstream waters, provides certainty in how far safeguards extend to nearby waters, protects regional water treasures, and focuses on streams, the EPA said. The rule does not protect any new types of waters, apply to groundwater, creates new permitting requirements for agriculture, or address land use or private property rights, according to the EPA.

Alaska Gov. Bill Walker said that instead of clarifying federal law the rule has left states with more questions, and that this final rule is likely to have detrimental impacts on development in Alaska. The rule, said Walker, will only lead to more expensive permitting and legal fights over which waters are in and which waters are out under the federal law.

Environmental entities have a different viewpoint.

According to Bob Shavelson, executive director of Cook Inletkeeper in Homer, “no one from Greenpeace to the Koch Brothers is happy with this rule, so it’s probably a decent compromise by EPA. And, said Shavelson, “it adds the predictability industry always says it wants after years of litigation and confusion.”