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Yellowhammer News - Alabama to Challenge the EPA's Latest Radical Overreach in Court

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Location: Washington, DC

By Jordan Laporta

Alabama joined eight other states in a lawsuit Tuesday against the Environmental Protection Agency regarding a new rule that expands its authority over small bodies of water that accumulate in ditches, local streams, and farmland.

The new "Waters of the United States" rule seeks to extend the EPA and Army Corps of Engineers' regulatory reach to an indefinite number of small bodies of water, including roadside ditches, temporary streams or "any waters located within the 100-year floodplain of a traditional navigable water."

The petitioning states argue that 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 their own waters and lands.

"The new EPA water rule is one of the most extreme to be proposed under an administration which has gone out of its way to ignore the powers of Congress and, accordingly, the Constitutional limits upon its own authority," said Attorney General Strange (R-AL). "This new rule would expand the reach of the federal government onto the property of homeowners, farmers and other businesses, potentially requiring them to obtain permits for the simplest of changes to their land, including fence building, digging ditches or spraying fertilizers. If a property owner fails to comply with the EPA's new water rule they would be hit with a fine of up to $37,000 a day. The phrase "government run amok' may be overused but it certainly fits in this case."

Strange argues that the EPA misinterprets the Clean Water Act way in way repugnant to Federal precedent. The CWA gives the EPA and Corps of Engineers the authority to regulate "navigable waters" defined as "waters of the United States." Citing the U.S. Supreme Court cases of Solid Waste Agency of Northern Cook County v. Army Corps of Engineersand Rapanos v. United States, the Alabama Attorney General asserts that the Federal Government's attempts to expand its authority into the constitutional, sovereign responsibility that states have over non-navigable, intrastate lands and waters have been shot down.

Every Republican Congressional member from Alabama voted in favor of blocking the new rule in May. The state's lone Democratic representative, Terri Sewell (D-AL7) did not vote. Since the Senate did not also vote to block the rule, it went into effect at the end of May.

After the May vote attempting to block the rule, Congresswoman Martha Roby (R-AL2) said "I've heard from countless farmers, foresters and families in Alabama who are under threat of being aggressively and unnecessarily penalized by federal water regulators. Trying to expand the definition of navigable waters to include puddles and ditches has never made sense. It reeks of a radical environmental agenda being forced on Americans, and Congress is right to take steps to stop it."

"While the EPA claimed to listen to the extensive public outcry over this proposal by making cosmetic changes, the rule is still well beyond EPA's rightful authority." Rep. Gary Palmer (R-AL6) said after the same vote."I have voted to roll back this rule by supporting H.R.1732, the Regulatory Integrity Protection Act, which would block its implementation, and I hope further action will be taken to stop this rule from being implemented."

Just this week the Supreme Court sided with states, including Alabama, in stalling another onerous rule that would have cost manufacturers billions in compliance.

The Court ruled that the Obama administration should have considered the cost of compliance when it decided to limit emissions of mercury and other hazardous air pollutants mainly from coal-fired power plants.

Alabama joins West Virginia, Florida, Georgia, Kansas, Kentucky, South Carolina, Utah and Wisconsin in filing the federal lawsuit in the Southern District of Georgia.


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