States Lead the Way with Clean Water Rule Litigation

July 2, 2015 | Kristine A. Tidgren

They wasted no time. The day the new Clean Water Rule was officially published, June 29, 2015, the lawsuits began. As of today, 27 states have joined lawsuits challenging the validity of the new Rule unveiled May 27 by the Environmental Protection Agency and the U.S. Army Corps of Engineers.

Much of the most publicized criticism against the Clean Water Rule has been lodged by farming and industry groups.[i] However, it was the states (and more than half of them) that immediately ran to federal court to challenge the Rule upon publication.

Four separate complaints are now pending. On Monday, states filed federal complaints in the Southern District of Ohio[ii], the District of North Dakota[iii], and the Southern District of Texas.[iv] The next day, June 30, 2015, more states joined to file an action in the Southern District of Georgia.[v]

Although the industry groups have a lot at stake when it comes to the Rule, the States arguably have more. For the most part, the burden to interpret and enforce the new Rule’s expansive jurisdictional definition will largely fall to the States. The Rule, they contend, is arbitrary and capricious and in excess of the agencies’ authority. The Rule, they allege, also intrudes upon States’ rights. It is the primary responsibility of the States to protect, manage, and care for intrastate waters. This new Rule, they say, strips the states of this right and violates the Tenth Amendment of the U.S. Constitution. The lawsuits, each asserting similar yet uniquely presented claims, all ask the court to enjoin enforcement of the Rule and ultimately vacate it.

Every complaint has a different flavor. Ohio’s complaint explains:

The Rule propounded by Defendants does not limit their regulatory authority to “navigable waters.” It does not limit their authority to navigable waters and water or wetlands that abut and maintain a continuous surface connection with navigable waters. It does not even stop at continuously flowing streams that themselves feed directly into navigable waters. Rather, in sweeping terms, it purports to extend federal regulatory jurisdiction over broad swaths of the country, including vast areas within the States of Ohio and Michigan, that in no way constitute navigable, potentially navigable, or interstate waters—even in various instances reaching land that is typically dry.

North Dakota’s complaint states as follows:

The Final Rule defines “waters of the United States” in a way that exceeds the Agencies’ statutory authority by asserting, inter alia, that: (1) all waters that fall within the Rule’s definition of “tributary” are per se jurisdictional; (2) all waters that fall within the Rule’s definition of “adjacent waters” are per se jurisdictional; (3) purely intrastate waters and related features can fall within the Agencies’ jurisdictional authority based solely on their relationship with non-navigable interstate waters; and (4) waters alone or in combination with “similarly situated waters” that have a “significant nexus” to a primary water or significantly affect the chemical, physical, or biological integrity of a primary water are within the Agencies’ jurisdictional authority.

All the complaints attack the expansive definitions of “tributaries” and “adjacent waters” proffered by the Rule. They also assert that the Rule’s case-by-case coverage of “other waters” violates U.S. Supreme Court precedent.[vi]  The Texas complaint sets forth a detailed chart specifying the seven steps of analysis a landowner would need to perform (or pay to have performed) to determine whether a particular water feature is an “adjacent water” subject to Clean Water Act jurisdiction. The complaint then asserts:

It is unrealistic for the Federal Agencies to expect that landowners will possess the expertise, patience, and resources to employ this onerous test to determine whether their land can fall under the Final Rule’s definition of “adjacent waters.” Nor should states and their taxpayers be forced to spend funds for such onerous jurisdictional determinations. Moreover, it is unrealistic for the Federal Agencies to expect that such a complicated standard can be applied predictably and consistently across the nation.

These lawsuits launch what’s bound to be extended litigation over the validity of the Clean Water Rule. Many more complaints from many more plaintiffs are sure to follow. The Rule is scheduled to take effect August 28, 2015 (60 days from the date of publication), unless a court intervenes. We will keep you posted.

Here are the complaints:

Ohio Complaint

Georgia Complaint

Texas Complaint

North Dakota Complaint

Update: On July 8, the State of Oklahoma filed its own lawsuit in the United States District Court for the Northern District of Oklahoma.

Oklahoma Complaint

[i] Thirty-five states did oppose the Rule during the comment period.

[ii] Ohio and Michigan

[iii] North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, and Wyoming. Also includes New Mexico Environment Department and New Mexico State Engineer

[iv] Texas, Louisiana, and Mississippi.

[v] Georgia, West Virginia, Alabama, Florida, Kansas, Kentucky, South Carolina, Utah, and Wisconsin

[vi] Specifically Solid Waste Agency of Northern Cook Cty. v. Army Corps of Eng’rs, 531 U.S. 159 (2001) and Rapanos v. United States, 547 U.S. 715 (2006).