States sue over EPA's unprecedented land grab

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Posted by Kendyll Ferrall on Thursday, July 2nd, 2015, 11:00 AM PERMALINK

The Environmental Protection Agency (EPA) had a rough Monday.

Hours after the Supreme Court released its 5-4 ruling that struck down the EPA’s rule on mercury limits, which was a major cornerstone for the Obama Administration’s environmental agenda, 12 states filed a federal lawsuit against the agency and the Army Corp. of Engineers to block the controversial Waters of the United States (WOTUS) rule. 

Attorneys representing Wyoming, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, North Dakota and South Dakota submitted requests to the 8th Circuit Court of Appeals asking for the rule to be thrown out before it takes effect in August.

Released in May, the final draft of the rule would essentially grant the federal government unfettered authority over waterways, allowing the EPA to regulate almost any piece of private land where water can conceivably flow. The finalized WOTUS rule came on the heels of the passage of H.R. 1732, The Regulatory Integrity Protection Act. Passed by a bipartisan coalition in the House, the bill would require the EPA to revoke the rule, but the EPA has ignored the vote.

The rule would result in a massive federal takeover of private property rights and includes bureaucratic red-tape, costly and time-consuming permit requirements, penalties and possible jail-time for failure to comply with the rule’s many requirements.

In addition to imposing unnecessary burdens on landowners, farmers, ranchers and small businesses, the states currently involved in the lawsuit argue that WOTUS violates the CWA and the U.S. Constitution. WOTUS disregards the distinction between federal authority and private or state landownership that was created under the Clean Water Act (CWA). The CWA grants states certain jurisdiction over land and water within its boundaries.

While the EPA claims that the purpose of the rule is to clarify which waters are covered under the CWA, the states affected by the impending regulations believe that it will tremendously expand the regulatory authority of the EPA and the Corp. and is an impermissible expansion of power. WOTUS would allow the federal government to control vast portions of land from areas where water is seasonally found, like ditches, ponds and field waterways, to areas where the flow of water has been altered by the landowners. Private land would essentially be converted to federally-owned land.

separate lawsuit was filed in the U.S. District Court for the Southern District of Georgia by attorneys general in Alabama, Florida, Georgia, Kansas, Kentucky, South Carolina, Utah, West Virginia and Wisconsin. Texas, Mississippi and Louisiana have also filed their own suit.

This growing-group of WOTUS lawsuits adds to the long and litigious history of the EPA’s attempts to expand its authority over private land that began with the 2001 Supreme Court decision that limited the agency’s regulatory power.

 

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