The lawsuit filed in North Dakota federal court seeks to stop the
rule, which defines which of the so-called "Waters of the United
States" are regulated under the Clean Water Act, from taking effect
next month.
Finalized in December, the rule protects waterways that have a
“significant nexus” to navigable U.S. waters – a standard that
ranchers, developers and other industry groups have said is overly
broad and creates burdensome permitting and regulatory hurdles.
"This is a textbook case of federal overreach," said Patrick
Morrisey, West Virginia's attorney general, during a press
conference.
The EPA didn't immediately respond to a request for comment
Thursday.
The lawsuit is the latest front in the protracted battle over the
scope of the Clean Water Act and what waterways the federal
government has the authority to regulate.
Texas and industry groups led by the American Farm Bureau Federation
filed separate lawsuits last month challenging the rule. Previous
efforts by the Obama and Trump administrations to define the law's
scope also faced numerous legal challenges.
The Biden administration rule would protect wetlands and seasonal
streams, not just permanent waterways like the rivers and lakes they
feed into. Those smaller waterways were largely eliminated from
protections by a Trump administration rule.
The Biden administration signaled its intent to replace that rule in
June 2021. EPA Administrator Michael Regan said then that the
narrower Trump-era approach was particularly impactful in arid
states like New Mexico and Arizona, where nearly every one of the
seasonal 1,500 streams lost protections.
The Trump-era rule had been vacated by an Arizona federal court in
August 2021, which restored previous standards while the Biden
administration worked on its changes.
The case is State of West Virginia et al. V. U.S. Environmental
Protection Agency et al., U.S. District Court for the District of
North Carolina, case No. 3:23-cv-00032.
For the states: West Virginia Attorney General Patrick Morrisey,
Solicitor General Lindsay See and Senior Deputy Solicitor General
Michael Williams
For the EPA: Counsel not immediately available
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