Montana Attorney General Knudsen announces lawsuit against WOTUS rule
HELENA – Montana Attorney General Austin Knudsen and attorneys general from 23 other states announced a lawsuit on Feb. 16, 2023, against the Biden administration’s “Waters of the United States” rule that attempts to expand federal authority over most any water in the country.
The Environmental Protection Administration’s (EPA) Waters of the United States rule “goes beyond the power Congress delegated in the Clean Water Act, raises serious constitutional concerns, and runs roughshod over the Administrative Procedure Act.”
“The Biden administration’s water rule limits use of land and violates the law and U.S. Constitution. The EPA greatly overstepped its authority by trying to claim jurisdiction over land and water that is not connected to any navigable water,” Attorney General Knudsen said. “We’re fighting to protect the farm and ranching operations, mining and energy workers, and infrastructure and housing projects across Montana that will be harmed if this overreaching and unconstitutional rule takes effect.”
The Trump administration replaced the Obama administration’s controversial 2015 WOTUS rule with the Navigable Waters Protection Rule, which was finalized in 2020 and created a clear distinction between federal waters and waters subject to the sole control of the states, their governmental subdivisions, and tribes.
President Biden signed an executive order on his first day in office that began the process of rolling back the Trump administration reforms, which was finalized in December when the EPA issued its new rule repealing the NWPR and simply repackaged the 2015 Obama rule. The new rule redefines “navigable waters” to include ponds, certain streams, ditches, and other bodies of water under the CWA, as determined by the EPA and the Army Corps of Engineers.
According to the Montana Farm Bureau Federation, estimates from the similar Obama-era rule would have placed nearly 90 percent of Montana’s land under the EPA’s jurisdiction.
The attorneys general note in the lawsuit that the flawed and unlawful rule will affect farmers who may need to get permission from the EPA and the Army Corps of Engineers to fill or dredge wetlands or waterways, depending on whether those features fall under the federal government’s purview. Developers, miners and other property owners wishing to make use of their land will face implications, too.
“By implementing an overbroad and hopelessly vague scheme, the Agencies have toppled the cooperative federalism regime that Congress intended to protect in the CWA. Core state sovereign interests can be subjugated to the desires of two federal administrative agencies, even as to remote, non-navigable, intermittent, ephemeral, and purely intrastate waters,” the lawsuit states. “Meanwhile, if the Final Rule is left in place, then ranchers, farmers, miners, homebuilders, and other landowners across the country will struggle to undertake even the simplest of activities on their own property without fear of drawing the ire of the federal government. Landowning Americans of all stripes will thus be left with a choice: fight their way through an expensive and lengthy administrative process to obtain complex jurisdictional determinations and permits or face substantial civil and criminal penalties.“
Montana and the other states also announced a motion for preliminary injunction to stop the Biden administration’s new WOTUS rule while it’s under litigation.
“The States need preliminary relief from all this now, before the rule goes into effect on March 20. That effective date will trigger significant burdens for the States, who administer costly and time-intensive permitting and other programs under the CWA,” the motion states. “The time and money to dissect the Final Rule and expand these programs to the new lands and waters it reaches will come at the expense of other critical state functions. That time and money can never be recovered.”
–Montana Attorney General Knudsen