States File Suit Challenging WOTUS

The Waters of the United States (WOTUS) rule has given rise to three separate lawsuits against the Environmental Protection Agency and the United States Army Corps of Engineers, with multiple states behind each suit.

The first suit has been filed in the District of North Dakota, joined by the states of Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, Wyoming, as well as the New Mexico Environment Department and New Mexico State Engineer. The suit seeks declaratory and injunctive relief against the WOTUS rule, stating that WOTUS “unlawfully expands the Agencies’ jurisdiction over state land and water resources beyond…the Clean Water Act.” The suit is seeking the relief under violations of the Administrative Procedure Act, the Clean Water Act, the National Environmental Policy Act, the Commerce Clause of the U.S. Constitution, and the Tenth Amendment.

The second suit has been filed in the U.S. District Court for the Southern District of Georgia, joined by Alabama, Florida, Kansas, Kentucky, South Carolina, Utah, West Virginia, and Wisconsin. The requested relief is to vacate the WOTUS rule, enjoin enforcement of the rule, and for any other relief deemed proper, for “usurp[ing] the States’ primary responsibility for the management, protection, and care of intrastate waters...” The suit is seeking the relief under violations of the Administrative Procedure Act, the Clean Water Act, the Commerce Clause of the U.S. Constitution, and the Tenth Amendment.

The third suit has been filed in the Southern District of Texas, joined by Mississippi and Louisiana. The suit calls the rule an “unconstitutional and impermissible expansion of federal power over the states and their citizens and property owners.” The relief sought by the suit is for the rule to be vacated, enjoined from enforcement, and for any other relief deemed proper. The legal theory for the relief is under violation of the Clean Water Act, the Administrative Procedure Act, and the United States Constitution.

All information has been gathered from the filed complaints obtained from www.pacer.gov.

Written by Tyler R. Etter- Research Assistant
July 1, 2015