Unless a federal judge issues a preliminary injunction, the definition of the “Waters of the U.S.” will change on August 28—giving the Environmental Protection Agency (EPA) the authority to regulate the water in your backyard. Even, according to West Virginia Attorney General Patrick Morrisey: “any area where agencies believe water may flow once every 100 years.”
Thirty-one states, in four districts, have filed motions with the federal courts to block the EPA and the U.S. Army Corps of Engineers (ACOE) from beginning to enforce the new “Waters of the U.S.” rule (WOTUS), which represents a new interpretation of the Clean Water Act (CWA).
WOTUS was published in the Federal Register on June 29 and will become effective on August 28.
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The CWA used to apply to “navigable waters,” which now, as Texas Attorney General Ken Paxton recently said: “include almost any piece of land that gets wet and puddles.”
While the word “navigable” hasn’t been removed from CWA—as that would require an act of Congress—the EPA has expanded that definition to include any water that has a “significant nexus” with navigable waters. Regarding the final rule, Paxton explains: it “is so broad and open to interpretation that everything from ditches and dry creek beds, to gullies, to isolated ponds formed after a big rain could be considered a ‘water of the United States.’”
The CWA’s single word, “navigable,” has, for decades, been contentious with those who want to expand government control and limit industrial activity such as oil-and-gas development, mining, ranching, and farming. Former Representative Jim Oberstar (D-MN) fought hard to have the word “navigable” removed from the CWA and to expand its control to any waters. Despite repeated bites at the apple, prior Congresses refused to pass his legislation.
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A July 28, 2015 letter signed by officials from 31 states, sent to the EPA and the ACOE requesting a minimum nine-month extension of the WOTUS effective date, states: “the new regulation will also have a significant impact on agricultural, homebuilding, oil and gas and mining operations as they try to navigate between established state regulatory programs and the EPA’s and ACOE’s new burdensome and conflicting federal requirements.”
On August 11, thirteen states—including oil-and-gas “heavyweights,” as Natural Gas Intelligence (NGI) calls them, Alaska, Colorado, North Dakota, and New Mexico—became the latest to ask a federal judge to block the controversial rule from taking effect. The states have asked for a hearing on the motion during the week of August 24. NGI states: “The oil and gas industry is opposed to the regulations because they believe it could stifle development.” A statement from the Independent Petroleum Association of America supports this assertion: “The 297-page rulemaking would require a federal permit for any activity that results in a discharge into any body of water covered by the new definition of ‘waters of the United States,’ including small streams and wetlands.”
In addition to the 31 states, on July 2, a coalition of a dozen industry groups—from agriculture to manufacturers to mining—filed a complaint against the EPA and ACOE over the WOTUS rule.
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The goal of the litigations is to delay or defeat the regulations before they go into effect.
Apparently, the EPA—which allowed millions of gallons of toxic waste to spill into the Animas River—believes the agency can do a better job of protecting waterways, streams and wetlands than the states. A wide majority of states and industries disagree. The coalition hopes the lawsuits will overturn the rule and prove that the EPA has, again, gone beyond its jurisdiction with this expansion of regulatory authority.
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