Wisconsin Attorney General Sues EPA Over “Waters of US” Rule

Attorney General Brad Schimel announced that Wisconsin has joined eight other states suing the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers to strike down EPA’s new Waters of the United States rule. The suit was filed in the U.S. District Court for the Southern District of Georgia. A parallel suit has been filed in the U.S. District Court of North Dakota.

EPA’s Waters of the United States rule expands EPA’s jurisdiction over bodies of water that never before were able to be regulated under the Clean Water Act. Significantly, the rule establishes EPA’s authority over intrastate non-navigable waters by counting wetlands as Waters of the US if they are adjacent to navigable waters. EPA claims that they are just codifying the holding of Rapanos v. United States. In Rapanos the plurality stated that waters of the United States “includes only those relatively permanent, standing or continuously flowing bodies of water ‘ forming geographic features’ that are described in ordinary parlance as ‘streams, … oceans, rivers, [and] lakes.’”[1] In a concurring opinion Justice Kennedy noted that in previous cases the Court held that when a body of water was not navigable, then to be regulated under the Act the water must “possess a ‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.”[2] Justice Kennedy defined “significant nexus” as the secondary water, wetland, must “significantly affect the chemical, physical, and biological integrity of” the primary body of  water (for a further discussion of Rapanos read our earlier blog post here).[3] The plaintiffs contend that EPA is unlawfully expanding its authority under the Clean Water Act to include non-navigable intrastate waters that have no significant nexus to navigable interstate waters.

The complaint contains six counts:

1. That the Rule violates the Clean Water Act by exceeding the Act’s authority and thus is arbitrary and capricious[4]
2. Under the Administrative Procedure Act (APA) the Rule is arbitrary and capricious.[5]
3. The Rule expands the Clean Water Act beyond Congress’s power under the Commerce Clause[6]
4. The Rule violates state sovereignty under the 10^th Amendment[7]
5. The final rule is not a “logical outgrowth” of the proposed rule and therefore violates the APA’s notice and comment requirements[8]
6. A claim for injunctive relief[9]

Ultimately the complaint asks the court to declare the rule illegal, enjoin EPA and the Army Corps of Engineers from enforcing it, and to force EPA to go through the proper rulemaking process when drafting a new version of the rule.