Attorney General Joins in Lawsuit Against Environmental Protection Agency, U.S. Army Corps of Engineers

Attorney General Jim Hood

Attorney General Jim Hood has joined Texas Attorney General Ken Paxton and Louisiana Attorney General James D. “Buddy” Caldwell in a lawsuit against the Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (the Corps) challenging the legality of their new rule defining “waters of the United States” under the Clean Water Act (CWA).

Currently, the CWA gives the federal government limited authority to regulate the discharge of certain materials into “navigable waters,” which is defined as “the waters of the United States, including the territorial seas.”

Attorney General Jim Hood stated, “The new rule has the potential of shifting primary regulatory responsibility over traditional state lands and waters from the states to the federal government. It gives unlawful federal power over the states, their citizens and property owners.”

The States of Mississippi, Texas, and Louisiana seek a declaration from the federal district court that the rule exceeds CWA authority and is not in accordance with the law.

The new EPA/Corps rule redefines “waters of the United States” expanding CWA jurisdiction by an estimated 4.65 percent. The rule purports to clarify the meaning of “waters of the United states.” However, in effect, the new rule broadly increases federal authority, decreases state control, and subjects broad categories of water features to federal regulation. For example, the rule’s definition of “tributaries” is broad enough to include dry ponds, ephemeral streams, intermittent channels, and ditches so long as these features are “characterized by the presence of the physical indicators of a bed and bank and an ordinary high water mark.”

Attorney General Jim Hood concluded, “the rule’s broad definitions and complicated standards make it unrealistic to expect that the rule will be applied consistently across the nation. The resulting expansion of federal authority will require the states to establish water quality standards for miles of newly regulated waters, and force state agencies to devote more resources to permitting activities. Landowners, farmers in particular, will have to seek permits or face substantial fines and criminal enforcement actions.”

This litigation is not the first time in which the Mississippi Attorney General’s Office has participated in lawsuits challenging regulatory actions taken by the current EPA administration.

• In 2012, the Mississippi Attorney General’s Office joined other states in challenging the EPA’s new Clean Air Act regulations. On June 29, 2015, the United States Supreme Court agreed with the position advocated by Mississippi and other states by finding that the EPA interpreted the Clean Air Act unreasonably when it deemed cost irrelevant to the decision to issue new regulations. See State of Michigan, et al. v. United States Environmental Protection Agency, – U.S. -, 135 S.Ct. 1541, 191 L.Ed.2d 558 (2014).

• In 2008 the Mississippi Attorney General’s Office filed suit challenging the EPA’s primary and secondary National Ambient Air Quality Standards for ozone. See Mississippi v. E.P.A., 744 F.3d 1334, 1341 (D.C. Cir. 2013).