July 1, 2015
www.gfb.org
Vol. 33 No. 26
STATES SUE EPA, CORPS OF ENGINEERS OVER WOTUS RULE Calling the EPA and U.S. Army Corps of Engineers “Waters of the U.S.” (WOTUS) rule an “unlawful and unprecedented expansion of federal power over private property owners and state and local matters,” the state of Georgia, joined by eight other states, filed suit against the agencies on June 30 seeking relief from the WOTUS rule. The final WOTUS rule was published in the Federal Register on June 29 and is scheduled to become effective on August 28. “The scope of the Waters of the U.S. rule is breathtaking and will directly impact the everyday lives of Georgians, from farmers to homeowners,” Georgia Attorney General Sam Olens said in a press release. “Under this excessive and expensive rule, a farm pond or even a homeowner’s back yard could be subject to federal regulation.” The suit is one of several filed by states against the agencies over the WOTUS rule, which the agencies proposed in April 2014 and finalized this spring. A group of 13 states, led by North Dakota, sued in the federal district court in Bismarck, N.D. Ohio and Michigan sued in the District Court of Southern Ohio, and the state of Texas, joined by Louisiana and Mississippi, filed suit in the Southern District court in Texas. Georgia’s lawsuit, filed in the federal court for the Southern District of Georgia, was joined by Alabama, Florida, Kansas, Kentucky, South Carolina, Utah, West Virginia and Wisconsin. The Georgia group complaint alleges that the WOTUS rule violates the Clean Water Act (CWA), the Administrative Procedures Act (APA) and the U.S. Constitution while usurping states’ primary responsibility for the management, protection and care of intrastate waters and lands. The states are asking the court to declare the WOTUS rule unlawful, that the court order the agencies to set aside the rule in its entirety, issue an injunction that prohibits its enforcement and send the rule back to the agencies to issue a rule that complies with the CWA and the APA. Georgia Farm Bureau and the American Farm Bureau Federation (AFBF) have opposed the rule since it was proposed, maintaining that the WOTUS rule greatly expands the jurisdictions of the EPA and the Corps of Engineers while circumventing the will of Congress and going against multiple Supreme Court decisions, which is also noted in the Georgia-led lawsuit. “This rule was never really about protecting water sources: It’s about giving EPA and the U.S. Army Corps of Engineers the power to regulate any activity on the land that they choose to regulate. And that’s what the rule does,” AFBF President Bob Stallman wrote in his July 2015 blog. An AFBF analysis showed that the final rule makes major changes under the category “other waters/case specific waters,” adds a new definition to “tributary” that is even broader than the proposed rule and expands “adjacent” category beyond wetlands to include any type of water.