By Clark Mindock
West Virginia and 23 other Republican-led states sued the federal government on Thursday, alleging the Biden administration’s rule establishing protections for seasonal streams and wetlands under a landmark environmental law violates the U.S. Constitution and sows confusion for landowners.
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
