Attorney General Sam Olens today has filed a lawsuit in federal court for the Southern District of Georgia asking the court to strike down a new rule from the U.S. Army Corps of Engineers and Environmental Protection Agency (EPA) that unlawfully expands the federal government’s regulatory reach over local streams, lands, and farms. He is joined by eight state attorneys general in the lawsuit.

The rule, known generally as the “Waters of the United States” rule, would extend the EPA and Corps of Engineers’ regulatory reach to an untold number of small bodies of water, including roadside ditches and short-lived streams or any other area where the agencies believe water may flow once every 100 years.

This rule could have dire consequences for homeowners, farmers, and other entities by forcing them to navigate a complex federal bureaucracy and obtain costly permits in order to perform everyday tasks like digging ditches, building fences, or spraying fertilizers. Failure to comply with this new regulatory scheme could result in fines of up to $37,500 a day.

“Today I am joining with a bipartisan coalition of attorneys general to challenge an unlawful and unprecedented expansion of federal power over private property owners and state and local matters” said Olens. “The scope of the ‘Waters of the United States’ rule is breathtaking and will directly impact the everyday lives of Georgians, from farmers to homeowners. Under this excessive and expensive rule, a farm pond, or even a homeowner’s backyard could be subject to federal regulation. As the federal government continues to issue burdensome and unconstitutional executive directives at an alarming rate, I remain steadfast in my commitment to protect and defend the interests of Georgians.”

“Through the finalization of this rule, a clear punitive overreach of the government’s power has taken place,” said Georgia Agriculture Commissioner Gary Black. “I view this as a frontal assault on private property rights; federal overreach on steroids. My sincere hope is that through this joint complaint, we will thwart yet another blatant overreach of the federal government.”

In the complaint, the Attorneys General of West Virginia, Alabama, Florida, Georgia, Kansas, Kentucky, South Carolina, Utah, and Wisconsin argue the final rule put forward by the EPA and Corps of Engineers violates the Clean Water Act, the Administrative Procedure Act, and the U.S. Constitution and usurps the states’ primary responsibility for the management, protection, and care of intrastate waters and lands.

While the Clean Water Act gave the EPA and Corps authority to regulate “navigable waters” – defined as “waters of the United States” – Congress made sure that states would retain their constitutional, sovereign responsibility over non-navigable, intrastate lands and waters. The U.S. Supreme Court has twice rejected the agencies’ attempts to expand their authority (in Solid Waste Agency of Northern Cook County v. Army Corps of Engineers and Rapanos v. United States). However, this latest rule written by the two administrative agencies gives them virtually limitless power over these waters.

The complaint asks a federal judge to declare the rule illegal and issue an injunction to prevent the agencies from enforcing it. It also asks the judge to order the agencies to draft a new rule that complies with the law.

A copy of the complaint is attached.

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