Clean Water Act lawsuits launched by Texas, North Dakota

States, agencies claim Clean Water Act restricts private property rights, tangles owners in red tape

The Environmental Protection Agency is facing several lawsuits over its new rule that gives federal agencies authority to protect some streams, tributaries and wetlands under the Clean Water Act.

Clean Water Act

North Dakota Attorney General Wayne Stenehjem.

Thirteen states led by North Dakota filed a lawsuit Monday, as well as the Texas Attorney General, joined by the states of Louisiana and Mississippi.

North Dakota Attorney General Wayne Stenehjem said the “Waters of the U.S.” rule by the U.S. Environmental Protection Agency and the Army Corps of Engineers is a “federal power grab” that is “unnecessary and unlawful and will do nothing to increase water quality.”

The rule – a response to calls from the U.S. Supreme Court and Congress for the EPA to clarify which smaller waterways are protected – was published in the Federal Register on Monday and takes effect Aug. 28.

According to the EPA, the waters affected would be only those with a “direct and significant” connection to larger bodies of water downstream that are already protected. It says the aim is to protect the waters from pollution and development and to safeguard drinking water.

The EPA did not immediately respond to questions from The Associated Press.

Clean Water Act

EPA administrator Gina McCarthy.

The lawsuit, filed in federal court in Bismarck, asks for the rule to be thrown out. The other states involved are Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, New Mexico, Nevada, South Dakota and Wyoming.

Republicans in Congress, and some Democrats including North Dakota Sen. Heidi Heitkamp, also have backed legislation to block the rules.

Stenehjem told reporters that the rule “illegally” gives authority to the EPA and the Corps and will add “red tape and other obstacles” to farmers, ranchers and landowners. Failure to get permits under the new rules will result in “steep penalties and even jail time,” he said.

He said farmers and other landowners could be subjected to federal oversight for even dry ditches on their land. The thousands of small ponds in the Upper Midwest known as prairie potholes also will be regulated, he said.

Texas Attorney General Ken Paxton says the EPA’s new water rule is about power, not clean water.

today filed a lawsuit challenging the Obama Administration’s illegal attempt to expand the regulatory power of the Environmental Protection Agency (EPA) by revising the regulatory definition of “navigable waters” under the Clean Water Act, which vastly expands its jurisdiction, threatening the ability of states and private property owners to use their own land. The rule violates the U.S. Constitution, federal law and U.S. Supreme Court precedent, and places costly burdens on landowners in Texas.

Clean Water Act

Texas Attorney General Ken Paxton.

“This sweeping new rule is a blatant overstep of federal authority and could have a devastating effect on virtually any property owner, from farmers to ranchers to small businesses,” said Paxton.

“Texans shouldn’t need permission from the federal government to use their own land, and the EPA’s attempt to erode private property rights must be put to a stop.”

Paxton said in a release that the EPA’s actions are inconsistent with U.S. Supreme Court precedent in SWANCC v. Army Corps of Engineers and Rapanos v. U.S., in which the Court ruled that the federal government exceeded its statutory authority by attempting to regulate areas never intended by Congress.

The Texas Railroad Commission, which regulates oil and gas development in the state, also joined in the lawsuit.

“This lawsuit draws a line in the sand that will push back on this outrageous effort by President Obama’s EPA to further his radical war against fossil fuels,” David Porter, commission chair, said in a release.

Railroad Commissioner Christi Craddick framed the issue as states’ right to properly regulate industry and environment.

“In spite of our state’s many successes, the EPA continues to challenge states’ regulatory expertise, ultimately limiting private property rights and economic growth,” she said.

“Texans can rest assured that the EPA’s attempt to unlawfully expand its authority of U.S. waters under the Clean Water Act will be met with our challenge of this unfounded, burdensome effort.”

Other plaintiffs in the lawsuit include the Texas Department of Agriculture, Texas Commission on Environmental Quality, Texas Department of Transportation, Texas General Land office, and the Texas Water Development Board.

With files from the Canadian Press.

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