TOPEKA – (February 16, 2023) – Kansas Attorney General Kris Kobach joined a coalition of more than 20 states in a lawsuit against the U.S. Environmental Protection Agency, asking a federal court to vacate the newly published final rule redefining Waters of the United States (WOTUS) and declare it unlawful.
The coalition is being co-led by West Virginia Attorney General Patrick Morrisey, who announced the lawsuit on Thursday.
Co-leaders in the suit, which also names the United States Army Corps of Engineers as a defendant, are Georgia, Iowa and North Dakota.
“The time has come for the federal government to stop its unconstitutional attempts to regulate every dry ditch and farm pond in Kansas,” Kobach said. “This lawsuit is about the original meaning of the Constitution, and we are going to hold the Biden administration to it.”
The new final rule is the culmination of a decades-long rulemaking process to define the geographic reach of the EPA’s and Army Corps of Engineers’ authority in regulating streams, wetlands and other water bodies under the Clean Water Act. It follows the Trump Administration's 2020 Navigable Waters Protection Rule, which offered a more restrained vision of federal jurisdiction under the CWA.
Most notably, the new rule redefines “navigable waters” to include ponds, certain streams, ditches, and other bodies of water under the CWA, as determined by the EPA and the Army Corps of Engineers.
According to the coalition, the flawed and unlawful rule will affect farmers who may need to get permission from the EPA and the Army Corps of Engineers to fill or dredge wetlands or waterways, depending on whether those features fall under the federal government’s purview. Developers, miners and other property owners wishing to make use of their land will face implications, too.
What’s more, the lawsuit noted 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 battle over the reach of the CWA. West Virginia Attorney General Morrisey led a 26-state coalition in support of the petitioners, Michael and Chantell Sackett.
The coalition’s lawsuit indicated that “if the final rule is left in place, then ranchers, farmers, miners, homebuilders, and other landowners across the country will struggle to undertake even the simplest of activities on their own property without fear of drawing the ire of the federal government.”
“Landowning Americans of all stripes will thus be left with a choice: (a) fight their way through an expensive and lengthy administrative process to obtain complex jurisdictional determinations and permits or (b) face substantial civil and criminal penalties. The Final Rule’s ambiguous environmental benefits do not justify any of this,” according to the lawsuit.
West Virginia, Georgia, Iowa and North Dakota were joined in the lawsuit by Alabama, Alaska, Arkansas, Florida, Indiana, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia and Wyoming.
A copy of the lawsuit is available at https://bit.ly/3YTHxHe.