Challengers say Obama water rule ‘destroys’ federal-state balance

Challengers say Obama water rule ‘destroys’ federal-state balance

Groups opposing the Obama administration’s Clean Water Rule are charging in court briefs that the regulation is a massive and illegal power grab by the federal government to claim states’ authority.

Two groups challenging it, more than two dozen states and dozens of business groups, argue that the Environmental Protection Agency (EPA) and Army Corps of Engineers violated numerous key tenets of the separation between state and federal rights.


“This case is about who has authority to regulate isolated land and water features that are far removed from any navigable waterway: the federal government or the sovereign states,” the states, led by Ohio Attorney General Michael DeWine, wrote Tuesday to the Court of Appeals for the Sixth Circuit, which is considering the challenge to its legality.

“The CWA, like the United States Constitution, reserves that authority to the states. Yet, in the rule at issue here, the agencies have asserted federal authority over many of those local resources,” they said.

“The rule destroys the careful balance between federal and state authority that Congress struck in the CWA and that the Constitution mandates."

The industry groups charged that the Obama administration “violated fundamental tenets of administrative law” in ignoring scientific studies, failing to evaluate costs and benefits, not considering alternatives and more.

They said the rule goes “well beyond” what the Clean Water Act allows, and is a clear violation of the Constitutional right to due process.

The Tuesday briefs were the opening volley in what has already been a long, drawn-out battle over the Clean Water Rule.

The agencies made the rule final last year, in an attempt to clarify that certain small waterways like wetlands and ponds are protected federally under the Clean Water Act.

But opponents, such as congressional Republicans and the states and groups suing the agencies, say they went way too far.

The Sixth Circuit court, which was picked by the federal Judicial Panel on Multidistrict Litigation to consider multiple consolidated cases challenging the rule, put a pause on its implementation last year, so the Obama administration cannot enforce it while it is being litigated.

The EPA and Army Corps have been ordered to file their reply brief by Jan. 18.