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AG Morrisey co-leads multistate suit against EPA Waters of the U.S. rule, also opposed by agriculture and business organizations

MORGANTOWN – State Attorney General Patrick Morrisey is again leading a multistate lawsuit against a Biden administration agency rule, again alleging Biden is illegally bypassing Congress to make laws through the executive branch.

Morrisey is co-leading a coalition of more than 20 states in a lawsuit against the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers asking a North Dakota federal district court to vacate the newly published final rule redefining Waters of the United States (WOTUS) and declare it unlawful.

Georgia, Iowa and North Dakota are suit co-leaders. Neighbor states Ohio and Virginia are among the plaintiffs.

“This is a textbook case of federal overreach,” Morrisey said in a press conference announcing the suit. He added in an accompanying press release, “This new final rule is a decades-long effort by the EPA to regulate purely intrastate waters without the explicit consent of Congress. This is yet another attempt from unelected bureaucrats to expand their own authority by broadly defining Waters of the United States.”

At the state level, Morrisey is joined in opposing the rule by the West Virginia Farm Bureau, the West Virginia Coal Association, the Gas and Oil Association of West Virginia, the West Virginia Contractors Association, the West Virginia Chamber of Commerce and the West Virginia Association of Builders and Contractors.

At the federal level, Republicans in both chambers of Congress have introduced resolutions of disapproval of the rule, which would invalidate the rule if it completed the legislative process. Sen. Shelley Moore Capito led the Senate resolution. Rep. Alex Mooney is a co-sponsor of the House resolution.

Twenty agricultural, industrial and business associations oppose the rule, including the American Farm Bureau Federation, the American Soy Association, Associated Builders and Contractors, the National Association of State Departments of Agriculture, the National Cotton Council and the U.S. Chamber of Commerce.

The EPA Rule

The EPA announced the final rule in December. Its purpose, EPA said, is “to reduce uncertainty from changing regulatory definitions, protect people’s health, and support economic opportunity.” It restores regulations in place before 2015 under the Clean Water Act for traditional navigable waters, the territorial seas, interstate waters and upstream water resources that significantly affect those waters.

“As a result, this action will strengthen fundamental protections for waters that are sources of drinking water while supporting agriculture, local economies, and downstream communities,” EPA said. It will provide greater certainty for farmers, ranchers, and landowners.

“It will also ensure that the nation’s waters support recreation, wildlife, and agricultural activity, which is fundamental to the American economy,” EPA said.

Stakeholders don’t agree with EPA, however, that the rule provides certainty.

American Farm Bureau Federation President Zippy Duvall said, “Farmers deserve rules that don’t require a team of attorneys and consultants to identify ‘navigable waters’ on their land.”

American Road & Transportation Builders Association Vice President of Legal & Regulatory Issues Nick Goldstein said, “The recent Waters of the United States definition from the Environmental Protection Agency would add more delay and confusion to the delivery of critical transportation improvements. By muddying federal Clean Water Act jurisdiction, EPA’s regulation directly contradicts the bipartisan infrastructure law’s goal of improving the project review and approval process.”

The problems

The energy and environment publication E&E News explains what’s behind the confusion.

The rule would give federal protection to large waterways, like interstate rivers and streams and wetlands that are adjacent to them, E&E News said. Wetlands would be considered adjacent if they are connected to those larger waterways with “relatively permanent” surface water connections, or if they have a “significant” hydrologic or ecological “nexus” to those protected tributaries.

The final rule does not include any distance requirements for adjacent wetlands to be protected by the Clean Water Act, but explains that protected wetlands must be “reasonably close such that the wetland can modulate water quantity or quality” in another protected waterway, E&E News said. There is no distance requirement because wetlands’ effects on downstream waters “depends on regional variations in climate, landscape and geomorphology.”

E&E News said that under the previous Obama rule – which Morrisey, Capito and Sen. Joe Manchin all opposed – isolated wetlands such as prairie potholes, western vernal pools and others were to be considered for federal protection on a case-by-case basis but also as a system in combination with other potholes in the watershed.

The degree to which such isolated wetlands would be protected under the Biden rule is not clear, E&E News said.

An EPA fact sheet names seven types of water: traditional navigable waters, territorial seas, interstate waters, impoundments, tributaries, adjacent wetlands, and additional waters. The EPA will determine jurisdiction based on two standards: relatively permanent waters and “significant nexus,” meaning a water body that significantly affects the chemical, physical or biological integrity of the first three types of water listed.

The dual standard creates more confusion, stakeholders say.

American Soy Association President Daryl Cates said the rule “in no way provides the clear, nationwide regulatory certainty farmers and land managers have requested repeatedly. In the latest WOTUS iteration, EPA and Army Corps use a confusing two-part standard to identify which waters are considered WOTUS.”

Distribution Contractors Association Executive Vice President Rob Darden said, “Federal policy that expands permitting requirements on ditches and other areas that clearly do not equate to navigable waters will unnecessarily delay or ultimately reject needed construction projects and create hardships for construction entities trying to comply with unclear and ever-changing requirements at a time when rebuilding America’s infrastructure is supposed to be a national priority.”

Leading Builders of America CEO Ken Gear said, “Families in every state in the nation are facing housing affordability challenges. … A primary driver of this crisis is increasingly expensive land and development costs. These costs add tens of thousands of dollars to the cost of each home we build. Building workforce housing that is affordable when it can take years of costly litigation and red tape under the ambiguous Clean Water Act, is nearly impossible.”

And National Rural Electric Cooperative Association Senior Vice President of Government Relations Louis Finkel said, “EPA’s final rule expands the reach of WOTUS and creates substantial regulatory uncertainty for electric co-ops. It will further complicate and slow permitting for electric infrastructure projects, which are vital for ensuring energy affordability and reliability for American families and businesses.”

The multistate suit

Morrisey said the WOTUS rule aims to regulate land and water with no connection to navigable waters, and by doing so violates interstate commerce law.

Because it’s so vague, Morrisey said, people won’t know if they’re in violation and potentially subject to $37,500 per day fines. “This is very, very far-reaching.” It also touches on the Major Questions Doctrine, which requires clear Congressional directive for agency action in certain extraordinary cases.

At the press conference, Kathy Beckett, West Virginia Chamber of Commerce environmental committee chair, said, “It would take significant resources by an individual or a corporation to begin to try to comply with the program as it is being presented now.”

Morrisey said the suit points out that the EPA and Army Corps rushed to issue the final rule “even though the Supreme Court is expected to issue a key decision on the scope of WOTUS in just a few weeks’ time.”

The U.S. Supreme Court heard arguments last October on Sackett v. Environmental Protection Agency, a years-long case regarding the reach of the Clean Water Act. Morrisey led a 26-state coalition in support of the petitioners.

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