Attorney General Pam Bondi on Tuesday made Florida the 17th state to join in a bipartisan lawsuit challenging the federal government’s attempt to seize regulatory control over large categories of state waters.
The joint lawsuit, filed in a federal district court in Georgia, is one of multiple lawsuits across the country filed by attorneys general in response to the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers’ adoption of the final Clean Water Rule: Definition of Waters of the United States, which, insist the 17 states, would supplant Florida’s constitutional right to govern much of its own state waters.
“Clean 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,” said Attorney General Bondi.
The actions are a coordinated challenge to the EPA rule issued May 27 that defines the jurisdiction of the EPA and the U.S. Army Corps of Engineers over rivers, streams, lakes or marshes. It was meant to clarify which waters are protected by the anti-pollution provisions of the 1972 Clean Water Act. Read the states' complaint here.
Florida Agriculture Commissioner Adam Putnam testified before Congress in February to voice his concerns regarding the EPA’s proposed, federal government-expanding regulations.
Putnam said Tuesday, “I thank Attorney General Pam Bondi and the other attorneys general for their leadership in defending states’ rights and holding the Obama administration accountable for its federal overreach.
“The unconstitutional expansion of the EPA’s jurisdiction over the Waters of the United States not only infringes on states’ authority, but also it threatens the sound environmental protection programs we have in place today.
“The far-reaching consequences of this power grab are not limited to the agriculture industry, which could face federal jurisdiction over ditches that are miles from the nearest navigable water.
“The consequences extend to our state as a whole. Florida is a unique and diverse state, and arbitrarily expanding federal oversight to remote wetlands would undermine our strong wetlands protection and stormwater management regulatory programs we currently have in place. Diverting local, state and federal funds to marginal waters could dismantle environmental protection programs statewide.”
The EPA said in a statement: “To clearly protect the streams and wetlands that form the foundation of the nation’s water resources, the agencies developed a rule that ensures waters protected under the Clean Water Act are more precisely defined, more predictably determined, and easier for businesses and industry to understand.”
The Clean Water Act grants federal regulatory authority over navigable waters. But the definition of “navigable” is disputed.
The question produced a confusing 2006 Supreme Court decision in Rapanos v. U.S. that held wetlands near ditches or manmade drains emptying into navigable waters are not “waters of the U.S.,” explained Louisiana Attorney General James “Buddy” Caldwell in a statement.
The new EPA rule would extend federal jurisdiction over tributaries that may be natural, man-altered or man-made, including canals and ditches, said the complaint filed in Texas.
The rule fails to account for duration of water flow -- which suggests, as the Texas lawsuit states, federal agencies can assert jurisdiction over “dry ponds, ephemeral streams, intermittent channels and even ditches.”
Texas, Louisiana, and Mississippi filed a joint lawsuit in a Houston federal court, asserting that the EPA’s final rule is “an unconstitutional and impermissible expansion of federal power over the states and their citizens and property owners.” While the EPA has the authority to regulate water quality, the suit says Congress has not granted the EPA the power to regulate water and land use.
That lawsuit claims that “the very structure of the 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.”
In a separate case, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, New Mexico, Nevada, North Dakota, South Dakota, and Wyoming are seeking to have the rule overturned. North Dakota Attorney General Wayne Stenehjem called the rule “unnecessary” and “unlawful,” according to the Associated Press.
According to the Hill, these cases are the first examples of states suing to block the rule, though the rule has faced opposition from states, businesses, farmers, and Republicans since it was first proposed in April 2014.
Associated Industries of Florida President and CEO Tom Feeney released his own statement regarding Bondi joining a legal challenge to the EPA’s “Waters of the U.S.” rule.
“... (The attorney general) has rightfully recognized the dangerous federal overreach by regulators through the EPA’s development of the ‘Waters of the U.S.’ (WOTUS) rule governing Florida's water bodies. This rule amounts to a Washington power grab that puts the property rights of Floridians at risk and one that is not based on sound science.
Florida has been a success story in working with the EPA on water rules that are reasonable and effective, having jointly developed a set of Numeric Nutrient Criteria (NNC) that are still in effect today. Unlike the NNC developed earlier this decade, WOTUS is a step too far and will penalize Florida businesses, restrict property rights, and hold Florida water users to a draconian standard.
On behalf of Florida's business leaders who rely on access to clean and abundant sources of water every day, we thank Attorney General Bondi for standing up for our state. We are hopeful that this lawsuit can help achieve a workable outcome that is beneficial to all parties involved.”
Reach Nancy Smith at nsmith@sunshinestatenews.com or at 228-282-2423. Twitter: @NancyLBSmith
