States sue to block Obama’s water rule

Eighteen states sued the Obama administration Monday to stop a new regulation asserting federal authority over minor waterways like streams and wetlands.

The rule from the Environmental Protection Agency (EPA) is one of the most controversial regulations from the Obama administration, redefining how the EPA enforces the water pollution protections of the Clean Water Act.

The states got together in three separate groups to file lawsuits in different federal courts, based in Bismarck, N.D.; Columbus, Ohio; and Houston.

The states argue that the EPA violated the clear language of the Clean Water Act that drew a line between federal authority and that of states or private landowners over waterways.

The attorneys general for Texas, Mississippi and Louisiana said in their lawsuit that “the very structure of the Constitution, and therefore liberty itself, is threatened when administrative agencies attempt to assert independent sovereignty and lawmaking authority that is superior to the states, Congress, and the courts.”

“The EPA has redefined ‘waters of the U.S.’ in order to gain greater authority and power over private land,” Nebraska Attorney General Doug Peterson said in a statement about the lawsuit he filed with leaders in Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.

“This rule clearly violates both the language and the spirit of the Clean Water Act, which recognizes the rights of states to serve as trustees of their natural resources,” Ohio Attorney General Mike DeWine said of his lawsuit with Michigan. “This is yet another example of the Obama administration overreaching its authority and unilaterally attempting to concentrate power in the hands of federal bureaucrats.”

The cases are the first court challenges against the rule, though they’re unlikely to be the last. Apart from many states, farmers, developers, business groups and others oppose rule, which they said could give the EPA power over almost any piece of land.

The administration wrote the rule and made it final last month in an attempt to clarify its jurisdiction after two Supreme Court cases made it murky. While about 3 percent more area is now covered by the Clean Water Act than before, the protections are still smaller than they were during President Bill Clinton’s administration.

The Clean Water Act gives federal officials jurisdiction over “navigable” water, but they also must regulate a certain distance upstream to protect the main waterways.

If a waterway is under federal jurisdiction, landowners might need permits for anything that harms or pollutes it.

“We’re finalizing a clean water rule to protect the streams and the wetlands that one in three Americans rely on for drinking water,” EPA Administrator Gina McCarthy said when rolling out the rule. “And we’re doing that without creating any new permitting requirements and maintaining all previous exemptions and exclusions.”

Brian Deese, a top adviser to President Obama, said “the only people with reason to oppose the rule are polluters who want to threaten our clean water.”

The agency made a point when it unveiled the rule to explain what is not covered, including standard agricultural practices and isolated ponds.

The House has voted to overturn the rule, and the Senate Environment and Public Works Committee has passed a bill to overturn it while giving the EPA specific instructions to re-write it.

— This story was updated at 4:40 p.m.