NC One of 17 States Suing Federal Government over Navigable Waters Protection Rule

The US Environmental Protection Agency (EPA) and the Department of the Army (Army) published a final rule on April 21, 2020 to define the waters of the United States (WOTUS) and streamline the scope of federal regulations under the Clean Water Act (CWA). The Navigable Waters Protection Rule (The Rule) includes four categories of jurisdictional waters, specifies exclusions for some water features, and defines terms in the regulatory text not previously defined. The final rule will become effective on June 22, 2020 and will replace the rule published on October 22, 2019.

North Carolina Attorney General Josh Stein filed a lawsuit against The Rule on Friday, May 1, 2020 accusing the Trump administration of weakening the CWA. Stein said the action would endanger protections of our rivers, lakes, and fisheries to a degree not seen in decades. Calling the rule a major threat to North Carolina's water quality, Attorney General Stein intends to fight along with the North Carolina Department of Environmental Quality (DEQ) for clean water.

In bringing this lawsuit, Stein is part of a coalition of Attorneys General including California, New York, Connecticut, Illinois, Maine, Maryland, Michigan, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington, Wisconsin, Massachusetts, Virginia, and the District of Columbia. One city, New York, has also joined the lawsuit.

Environmental advocacy organizations have also formed coalitions challenging The Rule. The Southern Environmental Law Center (SELC), representing a coalition of 14 environmental organizations, filed a lawsuit in US District Court for the District of South Carolina on April 29 2020. The SELC lawsuit accuses EPA and Army of neglecting fundamental rulemaking requirements and abandoning the "significant nexus" test considered in the Sixth Circuit Court of Appeals ruling of Rapanos v. United States and later articulated by Justice Kennedy in the US Supreme Court's decision of the same case.

One lawsuit filed in the US District Court for the District of Massachusetts says the rule adopts an "unreasonably narrow interpretation of the Clean Water Act" modeled after a 2006 Supreme Court opinion [Rapanos v. United States, 547 U.S. 715 (2006)]. The complaint pushes back on The Rule's conclusion that streams fed only by rain or snowfall are not WOTUS and not subject to the CWA. Similarly, The Rule considers wetlands, lakes, and ponds not WOTUS unless they directly touch other waters of the United States or are connected by certain types of surface-water flow.

Opposite views are also finding fault with the new rule. The New Mexico Cattlemen's Association, represented by the Pacific Legal Foundation, filed their own suit earlier in the week acknowledging that the navigable Waters Protection Rule is a significant improvement over other versions, but still unconstitutionally broad. In a press release on April 27, a senior attorney at Pacific Legal Foundation objected that the new rule lets federal agencies control ponds, wetlands, and other property far removed from navigable waterways.