AG Zoeller: EPA’s proposed rule oversteps its authority; states seek an injunction
INDIANAPOLIS – The State of Indiana officially joined a multistate lawsuit challenging the statutory and constitutional validity of an EPA proposed rule that would redefine small bodies of water such as streams, drainage ditches and wetlands as “waters of the United States†and would require agricultural landowners to obtain expensive permits.
The U.S. Environmental Protection Agency finalized the proposed rule June 29, and nine states filed a legal challenge to the rule in federal court in Georgia on June 30. Indiana Attorney General Greg Zoeller announced July 6 that Indiana also would join the multistate suit. On Monday, an amended complaint was filed in federal court listing Indiana as an additional state plaintiff joining the original nine.
The amended complaint notes that Indiana, like the other plaintiff states, long has had jurisdiction to regulate non-navigable small bodies of water within its borders, based in part on two prior U.S. Supreme Court decisions. The U.S. Environmental Protection Agency’s proposed “waters of the United States†or WOTUS Rule would redefine such small bodies of water as being under federal, not state, regulatory jurisdiction. The impact on Indiana’s agricultural economy would be particularly acute, as landowners could have to obtain more permits for agricultural runoff or discharge of water into drainage ditches, and violations could trigger onerous fines of $37,500 per incident per day.
“We contend EPA has greatly overstepped its bounds by intruding into an area of state environmental jurisdiction with a rule that is impractical, potentially harmful to Indiana’s agricultural economy and costly to taxpayers. In defending state authority, my office is joining our fellow states in asking the federal court to restrain EPA’s unconstitutional overreach,†Zoeller said. The Office of the Attorney General represents the State of Indiana in court.
The amended lawsuit contends, among other things, that the proposed WOTUS Rule exceeds EPA’s authority under the Clean Water Act as well as Congress’s Commerce Clause authority. The plaintiff states also contend the proposed rule would violate the Tenth Amendment of the United States Constitution, which reserves to states all government powers not expressly granted to the federal government. The multistate complaint asks the federal court for an injunction that would prevent EPA from implementing and enforcing the proposed rule.
The amended complaint also notes the WOTUS rule would redefine drainage areas such as intermittent streams that occur with heavy rain as being “waters of the United States†subject to federal regulation, including areas within a 100-year floodplain whether connected to a navigable body of water (such as a river) or not, and water located within 1,500 of the ordinary high-water mark, which the State contends is an arbitrary and difficult-to-define standard. Such a broad expansion of federal authority into areas never before subject to the EPA would mean landowners would have to apply for expensive additional permits and the State would incur additional resources in processing those applications, the suit contends.
Indiana Farm Bureau voiced its support of the WOTUS Rule challenge, noting the impact on farmers.
“When it comes to fighting overzealous regulators, Greg Zoeller has time and again stood with Indiana farmers,†said Don Villwock, president of Indiana Farm Bureau. “The WOTUS rule is just the latest example of his leadership in protecting the property rights of Hoosiers. Indiana Farm Bureau is grateful that the Attorney General and the state of Indiana will join the legal action against water regulations that will severely limit farmers’ ability to farm their land.”
The original complaint challenging the WOTUS Rule was filed by a bipartisan group of state attorneys general of Georgia, West Virginia, Alabama, Florida, Kansas, Kentucky, South Carolina, Utah and Wisconsin on behalf of their states. Indiana joined through the amended complaint. Named as defendants in the multistate lawsuit are the EPA and its administrator, Regina A. McCarthy, and the U.S. Army Corps of Engineers and its assistant secretary of the Army, Jo-Ellen Darcy. The suit is filed in U.S. District Court for the Southern District of Georgia, and no hearing dates have been scheduled yet. Any Indiana-specific legal work on the case would be handled by a deputy AG who is a salaried attorney who does not charge billable hours and would be paid the same regardless; but much of the effort on the case will be shouldered by the West Virginia Attorney General’s Office since it is the lead plaintiff state. Indiana is not using any outside counsel to participate.
Meanwhile, three other separate legal challenges to the WOTUS Rule are each currently pending in federal courts in Ohio, Texas and North Dakota, in which 18 additional states are participating in some combination as plaintiffs. The case Indiana joined is the nine-state case pending in federal court in Georgia; and that brings to 28 the total number of states challenging the EPA rule on various legal grounds. AG Zoeller is one of eight state attorneys general primarily from Midwestern states who serves on a new Agricultural Committee of the National Association of Attorneys General (NAAG) that will address issues of state government authority regarding agriculture.
