Legal & Regulatory

States Sue EPA, Army Corps Over Final Waters of U.S. Rule with Reach Over Power Plants

Thirteen states are suing the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers over the recently finalized Clean Water Rule, which they say illegally puts the federal government in charge of a majority of water and land resources in the U.S. 

North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, and Wyoming, along with the New Mexico Environment Department and New Mexico State Engineer filed a joint complaint in the U.S. District Court for the District of North Dakota on June 29. The rule was also published in the Federal Register on June 29.

In their complaint, the states say the rule’s new definition of “Waters of the United States” (or WOTUS) violates provisions of the Clean Water Act, the National Environmental Policy Act, and the U.S. Constitution. The states want the rule vacated and the EPA and Corps enjoined from enforcing a new definition of “Waters of the United States.”

The EPA and the U.S. Army finalized the Clean Water Rule this May, saying it would protect streams and wetlands from pollution and degradation.

The Clean Water Act, enacted in 1972, granted the federal government broad powers to limit pollution in so-called “navigable” waterways like the Great Lakes and the Ohio and Mississippi rivers. A pair of Supreme Court Decisions in 2001 and 2006 made it unclear whether the act also covered smaller bodies like groundwater, headwaters, streams and wetlands that feed those larger waterways, the EPA said when it promulgated the rule.

The agency said that it had received requests for a decade from members of Congress, state and local officials, industry, agriculture, environmental groups, scientists, and the public for a rulemaking that would clearly define and protect tributaries that impact the health of downstream waters.

Along with power generators, manufacturers, farmers, and Republican legislators have pushed back against the rule. The National Association of Manufacturers (NAM), for example, says the rule is another regulatory burden that expands the federal government’s reach into manufacturers’ onsite activities.

Electric utilities have expressed concerns that water near plants, such as water drainage ditches and cooling ponds, may be considered U.S. waters. According to the Nuclear Energy Institute, the rule will create “significant practical problems” for companies operating nuclear power plants and planning new facilities. “Industry’s activities involving land and water depend upon a determination whether the waters involved are subject to federal jurisdiction. Expanding the reach of Clean Water Act regulations, without just cause, would have a substantial impact on utilities’ ability to operate and maintain existing facilities and infrastructure as well as finance and develop new projects,” the industry groups said in January.

“If you have a pond that happens to be near another covered water, you have a ‘Water of the United States,’” said NAM Vice President of Energy Resources Policy Ross Eisenberg when the rule was finalized on May 27. “If you have certain types of ditches, you have ‘Waters of the United States’ on your property. This all adds up to increased regulatory uncertainty, permitting costs, delays and even litigation, not to mention a giant new set of hurdles standing in the way of construction.”

Sonal Patel, associate editor (@POWERmagazine, @sonalcpatel)


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