American Oil and Gas Reporter - August 2015 - 156

States File Lawsuits Over WOTUS Rule

BRUNSWICK, GA.-West Virginia
and North Dakota are the lead plaintiffs
in multistate efforts challenging the authority of two federal agencies seeking
changes in the definition of "waters of
the United States (WOTUS)" under the
Clean Water Act. The two state groups
claim the WOTUS definition is an attempt
to usurp their primary responsibility for
managing, protecting and caring for intrastate waters and lands.
Texas filed its own lawsuit in the U.S.
District Court for the Southern District
of Texas on behalf of it, Mississippi and
Louisiana, the filing document says.
"The success of protecting and improving the quality of American waters
has come through the cooperative work
of the states and the federal government,"
the Texas filing says. "That success is
threatened when administrative agencies
attempt to substitute their judgment for
decisions by Congress, the courts, and
the states. Moreover, the very structure
of the (U.S.) 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."
West Virginia Attorney General Patrick
Morrisey filed suit in the U.S. District
Court for the Southern District of Georgia
in Brunswick. According to the filing
document, he was suing on behalf of his
state, Alabama, Florida, Georgia, Kansas,
Kentucky, South Carolina, Utah and Wisconsin.
Another lawsuit was filed in the U.S.
District Court for the District of North
Dakota in Bismarck by North Dakota,
Alaska, Arizona, Arkansas, Colorado,
Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota and Wyoming, and
the New Mexico Environment Department
and state engineer, court documents say.
All three lawsuits allege the final WOTUS rule issued June 29 by the U.S. Environmental Protection Agency and Army
Corps of Engineers violates the Clean
Water Act, Administrative Procedures
Act, and sections of the U.S. Constitution,
court documents indicate. Under the rule,
the lawsuits say large categories of intrastate waters and sometimes wetlands-
"from minor roadside ditches, to ephemeral
streams, to creeks, ponds and streams
that lie where the agencies believe water
may flow once every hundred years"-either are per se or potentially are subject
to federal jurisdiction.
The states say the U.S. Supreme Court,

ruling in Solid Waste Agency of Northern
Cook County v. Army Corps of Engineers
and Rapanos v. United States, rejected
earlier agency attempts to assert regulatory
authority over state waters. "Contrary to
the plain terms of the Clean Water Act
and the Supreme Court's decisions interpreting that act, the final rule asserts that
the agencies have virtually limitless power
over non-navigable intrastate waters,"
the West Virginia filing states.

Proposed Rule
The rule proposed by EPA and the
Corps defines primary waters for CWA
purposes as including all waters now
used, that have been used or may be
used in interstate or foreign commerce,
as well as all interstate waters, including
interstate wetlands and the territorial seas,
the West Virginia filing says. The rule
then claims all intrastate tributaries or
tributaries of impoundments of primary
waters, as well as all intrastate waters
and wetlands adjacent to primary waters,
as federally regulated waters, the lawsuit
adds.
The proposed rule gives the agencies
authority over any other intrastate waters
that "alone or in combination with other
similarly situated waters, including wetlands located in the same region, have a
significant nexus" to a primary water,
the court filing says. It says the rule
defines significant nexus as significantly
affecting a primary water's chemical,
physical or biological integrity.
In their filing, the states allege the
agencies' attempt to expand their authority
to broad categories of non-navigable, intrastate waters and lands will harm them
and their citizens. "Once a water is determined to fall within the agencies' authority, this determination eliminates the
states' primary authority to regulate and
protect that water under the state's standards, and imposes significant federal
burdens on the states," the West Virginia
filing says.
"Such a federal jurisdictional finding
also places significant burdens on homeowners, business owners and farmers by
forcing them to obtain costly federal permits in order to conduct activities on
their lands that have no significant impact
on navigable, interstate waters," it adds.
Rule Requirements
Under the CWA, states must enact
water quality standards for waters covered
by the WOTUS definition and revise
those standards as necessary, the West

156 THE AMERICAN OIL & GAS REPORTER

Virginia lawsuit says. For waters that
fail to meet the standards, it notes, states
must set pollution limits-total maximum
daily loads-and use them in their water
quality management plans and National
Pollutant Discharge Elimination System
permitting programs.
The lawsuit points out that because
the proposed rule increases the number
of water bodies subject to CWA, states
must immediately determine which have
to be added to their jurisdiction and
decide whether water quality standards
apply to those additional waters. If the
standards do apply for a particular water,
a state must issue new standards or accept
EPA's, court documents state. They add
that the process of implementing those
standards is expensive and likely to place
significant strains on limited state resources.
The West Virginia-led lawsuit also
alleges:
* The agencies' decision to exempt
farmland from CWA jurisdiction based
only on its "adjacency" definition and
not the act's "tributaries" definition is
arbitrary and capricious, which violates
the Administrative Procedures Act. It
says farmland should be exempt under
both categories.
* The rule defines primary waters to
include interstate waters and wetlands,
including non-navigable interstate waters,
and establishes jurisdiction over adjacent
waters as well as jurisdiction on a caseby-case basis for waters with a significant
nexus to primary waters. Accordingly,
an intrastate water could fall under federal
jurisdiction simply because of its relationship to a non-navigable interstate
water.
* The rule extends federal reach by
including as primary waters all interstate
waters and wetlands, rather than the
smaller set of navigable waters. It also
includes tributaries with any flow rather
than earlier federal rules that limited coverage to tributaries with year-round flow
or continuous flow at least seasonally.
* Under the CWA, states must submit
biennial water quality reports to EPA describing conditions in all navigable waters
within their boundaries. The proposed
rule expands the navigable waters definition, and therefore requires states to
conduct more water quality assessments.
* The rule will require states to
process more EPA-mandated NPDES
permits covering pollutant discharges
into waters newly subject to federal regulation. In addition, the proposed rule

American Oil and Gas Reporter - August 2015

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