On Monday, June 29th, the joint EPA/Army Corps of Engineers Waters of the U.S. (WOTUS) Rule was published in the Federal Register.  See 80 FR 37053 (75 pages).   By law, the “effective date” will be August 28th 2015.  It would appear that the Rule will be final and enforceable barring any injunction issued on behalf of State Attorneys General or passage of the Federal Water Quality Protection Act (SB 1140), a bill halting implementation of the Rule in order to “maintain the cooperative federalism foundation of the Federal Water Pollution Control Act.”   As reported earlier, President Obama has pledged to veto any such legislation.  Consequently, some members of Congress are supporting language to defund the final rule in the annual federal appropriations process.  

That very day, sixteen states filed lawsuits against the EPA.  Texas, Mississippi and Louisiana asked a federal court in Houston to declare the WOTUS Rule unconstitutional calling it an “impermissible expansion of federal power over the states.”  See State of Texas v. U.S. Environmental Protection Agency (Southern District, Texas, No. 15-cv-162).   In North Dakota, another lawsuit was filed by a coalition of 13 states (Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, New Mexico, North Dakota, South Dakota and Wyoming) alleging that the Rule was an “unreasonable federal overreach.”  See North Dakota v. U.S. EPA, (North Dakota, No. 15-59).   

On Tuesday, June 30, Florida Attorney General Pam Bondi joined a group of nine attorneys general in another lawsuit filed in the Southern District of Georgia (including GA, WV, AL, FL, KS, KY, SC, UT, and WI).   The suit asserts that the WOTUS Rule is contrary to the Clean Water Act and the Supreme Court’s decisions interpreting the Act.  The Complaint also alleges that the expansion of jurisdiction “exceeds the Commerce Clause authority of Congress and violates the States’ sovereign authority under the Tenth Amendment,” giving the Agencies “virtually limitless power over non-navigable, intrastate waters.”   

In a press statement, Ms. Bondi said that “[c]lean water and environmental protection issues are critical in our state and Florida is better suited than the federal government to establish the regulatory rules necessary to protect our unique waterways. We cannot allow Floridians to bear the brunt of these types of costly and burdensome federal regulations, which would have a significant negative impact on local government, business and households all across our state.” 

One should expect that this litigation will be a long, multi-year, multi-stage process given the nature of the court system (U.S. District Court, U.S. Court of Appeals, U.S. Supreme Court).   Stay tuned.    

For a copy of the WOTUS Rule, please see:

https://www.federalregister.gov/articles/2015/06/29/2015-13435/clean-water-rule-definition-of-waters-of-the-united-states

 

For a copy of SB 1140, please see: http://www.barrasso.senate.gov/public/Files/Federal_Water_Quality_Protection_Act2015.pdf

 

For a copy of the Florida Complaint, see:

http://myfloridalegal.com/webfiles.nsf/WF/KMAN-9XYL5A/$file/WOTUS.pdf