Within hours of the Environmental Protection Agency (EPA) and Army Corps of Engineers’s publication of their final rule on federally regulated waters, more than half of the states—27 of them—filed lawsuits against the rule. They are joined by farmers, ranchers, home builders, mining companies, manufacturers, counties, states, Democrats, and Republicans, to name just a few, who have expressed disapproval of the EPA and Army Corps’s waters of the United States (WOTUS) rule.
This rule, publicly available May 27 and formally published in the Federal Register on June 29, would expand federal jurisdiction over almost any water, including almost every ditch. Depressions in land that only sometimes have water in them could be deemed tributaries and covered under the rule, even if they are bone-dry almost every day of the year.
Here is a small sampling of this wide opposition:
State and Local Government
Sam Olens, Attorney General of Georgia:
Today I am joining with a bipartisan coalition of attorneys general to challenge an unlawful and unprecedented expansion of federal power over private property owners and state and local matters.
Mary Fallin (R), Governor of Oklahoma:
Two things are immediately clear about the EPA’s new WOTUS rules. First, they represent the expansion of federal power over the nation’s waters at the expense of property owners and states. Second, the EPA released these without regard to state or local interests, and oftentimes in direct opposition to the will of states that expressed concern and alarm over the nature of these rules.
Matt Mead (R), Governor of Wyoming:
I am frustrated the EPA has again stepped out of the bounds of its authority and has disregarded the role and concerns of the state.
Attorneys General of Georgia, West Virginia, Alabama, Florida, Kansas, Kentucky, South Carolina, Utah, and Wisconsin in their suit against the EPA and Army Corps:
The Final Rule declares that large categories of intrastate waters and sometimes wet lands—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—are either per se or potentially subject to federal jurisdiction. 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.
Philip Ellis, President of the National Cattlemen’s Beef Association:
It shouldn’t be a surprise, however, that a flawed rule would come from a flawed process. Not only did the EPA write the proposal expanding the reach of the Clean Water Act without input from agriculture, the Agency implemented their own grassroots lobbying campaign to drown out the concerns of private property owners.
Jay Vroom, President and CEO of Crop Life America:
The rule extends federal oversight into areas not noted before such as ‘prairie potholes’, increasing regulation while failing to make a real contribution to the protection of our water supply.
The final WOTUS rule is even broader than the proposed rule. The definition of “tributary” has been broadened to include landscape features that may not even be visible to the human eye, or that existed historically but are no longer present.
Various Affected Associations
Counties support common-sense environmental protection, but the final rule expands federal oversight and will create costly delays in critical work without any proven environmental benefit.
Ross Eisenberg, Vice President of Energy and Resources, National Association of Manufacturers (NAM):
From ditches, to ponds, to creeks, this regulation will expand the Administration’s regulatory reach even further into the operations of manufacturers, farmers and small businesses. Under the guise of providing “clarity,” the EPA and the Corps have expanded the federal government’s reach into manufacturers’ on-site activities.
Tom Woods, Chairman of the National Association of Home Builders (NAHB):
EPA’s final water rule will needlessly raise housing costs and add more regulatory burdens to landowners and industries that rely on a functioning permitting process to spur job and economic growth.
Hal Quinn, President and CEO of the National Mining Association (NMA):
We remain deeply concerned that the promised clarity from this rule comes at the steep price of more federal interference with state, local and private land use decisions.
Members of Congress
Senator Joe Manchin (D–WV):
The bottom line is that no federal agency should go around Congress to control what has not been legislated, especially when its actions will harm economic growth.
Senator John Barrasso (R–WY):
Instead of reaching a reasonable solution, today the EPA has ignored millions of Americans and taken more control over private land in our country. There is bipartisan agreement that Washington bureaucrats have gone beyond their authority and have no business regulating irrigation ditches, isolated ponds and other “non-navigable” waters as waters of the United States.
Senator Heidi Heitkamp (D–ND):
It’s frustrating that after so much time, the EPA today decided to finalize this rule instead of conducting more consultations and releasing a revised rule as our legislation would require.
Senator Dan Coats (R–IN):
Instead of listening to comments from millions of Americans, bureaucrats at the EPA and the Army Corps of Engineers have chosen to double down on broadening this rule’s overreach. Indiana businesses, property owners and farmers already face a mountain of Washington red tape, and this announcement only adds more when Hoosiers make decisions about their own land.
Representative Collin Peterson (D–MN):
I am disappointed but not surprised that the EPA has decided to move forward with a rule that would increase confusion and red tape. Farmers, ranchers, local communities and businesses all expressed concern with the negative impacts of this rule. Despite that, EPA either wasn’t willing to listen or simply just does not get it.
Senator David Perdue (R–GA):
Imposing this sweeping new waters rule is another massive overreach by Washington. It is also concerning how the EPA continues to push President Obama’s partisan agenda despite strong opposition, including thousands of Georgia farmers and local leaders that directly voiced their disapproval. I share their concerns and will work tirelessly to stop such burdensome rules and regulations from negatively impacting our family farmers, small businesses, and private citizens.
The administration’s decree to unilaterally expand federal authority is a raw and tyrannical power grab that will crush jobs.… [T]he rule is being shoved down the throats of hardworking people with no input, and places landowners, small businesses, farmers and manufacturers on the road to a regulatory and economic hell.
People and organizations from across the political spectrum and different walks of life agree: The EPA and Army Corps’s rule goes too far. The EPA and Army Corps are seeking to grab power that is inconsistent with what is authorized under the Clean Water Act, completely ignoring the critical role that states are supposed to play in implementing the law, and making it far more difficult for property owners to use and enjoy their land. Ultimately, Congress must clarify what waters are regulated under the Clean Water Act. In the meantime, Congress needs to direct the agencies to withdraw the WOTUS rule.
Donnie Pulliam is currently a member of the Young Leaders Program at The Heritage Foundation. For more information on interning at Heritage, please click here.