Both North and South Dakota, along with 10 other western states have wasted no time in filing a lawsuit over the Waters of the U.S. rule. Attorneys General Wayne Stenehjem and Marty Jackley, along with their counter parts in Alaska, Arkansas, Arizona, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico and Wyoming filed the suit against the Environmental Protection Agency and the Army Corp of Engineers yesterday afternoon. The filing comes just hours after EPA officially published the controversial rule in the Federal Register, opening the door to legal action.
In a statement, South Dakota Attorney General Marty Jackley says EPA has overstepped its authority:
Jackley, along with attorneys general in 30 other state had filed comments critical of the rule prior to implementation. Six other states have formed a separate lawsuit against EPA, but for any variety of reasons will be filing in separate court systems.
Specifically, the lawsuit involving North and South Dakota asks the U.S. Federal Court in Bismarck to throw out the rule and prevent either the Environmental Protection Agency or the Army Corp of Engineers from enforcing it. The states argue they have primary authority over land and water, not the federal government and the broader definition of “waters of the U.S.” contained in the rule only widens federal jurisdiction. The lawsuit also says the definitions of “significant nexus” and “ordinary high water mark” are vague.
EPA and the Army Corp on the other hand, have long argued the Waters of the U.S. rule makes it easier, not harder, to understand which waters are under their control. They say all existing exemptions defined under the Clean Water Act will remain in place.
Under the 60 day notice period, the Waters of the U.S. rule will go into effect on August 28th barring judicial or legislative intervention