With the official federal register release of the Waters of the U.S. Rule on June 29, the rush to file early legal challenges has begun.  So far, 27 states have filed lawsuits alleging federal expansion over state waters.  The challenges say the rule violates the Clean Water Act, the Administrative Procedure Act, the National Environmental Policy Act and the commerce clause of the U.S. Constitution. More lawsuits are expected in the next week.  The rule becomes effective August 28, barring Congressional efforts and court challenges succeeding before that time. Ultimately, this issue is expected to be resolved by the U.S. Supreme Court.  NSSGA strongly opposes the rule because it will make permitting new facilities more costly and difficult, which in turn will drive up the cost of crucial infrastructure projects. 

“The unprecedented legal challenges to this rule by state governments shows that EPA has overstepped its legal authority in attempting to regulate features such as dry stream beds under the Clean Water Act,” said Emily Coyner, NSSGA’s Director of Environmental Affairs.  “NSSGA urges Congress to stop this rule before it puts businesses all over the country at risk.”

Texas, Mississippi and Louisiana filed a joint complaint in the U.S. District Court for the Southern District of Texas, charging that the rule is unconstitutional.  Ohio and Michigan filed a complaint in the U.S. District Court for the Southern District of Ohio, alleging that the expansion of jurisdiction includes dry land. Montana along with twelve other states (Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Nebraska, New Mexico, Nevada, North Dakota, South Dakota, and Wyoming) filed a lawsuit in the U.S. District Court for the District of North Dakota, claiming the final rule would harm states as regulators of the waters and lands. Georgia and eight other states (Alabama, Florida, Kansas, Kentucky, South Carolina, Utah, West Virginia and Wisconsin) filed suit in the U.S. District Court for the Southern District of Georgia, asking the court to vacate the rule and block its enforcement by injunction.

 Please ask your senators to pass S. 1140, the Regulatory Integrity Protection Act, which would force re-proposal the WOTUS rule, though either a letter or NSSGA’s Washington Action Hotline (866) 255-3207.