Oklahoma Attorney General Scott Pruitt thinks he has the U.S. Supreme court on his side as he filed suit Wednesday against the Environmental Protection Agency, challenging its Waters of the U.S. rule which would expand the agency’s control over much of the nation’s waterways, rivers, streams and even in some cases, dry creekbeds.
In his suit filed in Tulsa federal court, Pruitt contends the expansion of the federal authority is in direct conflict with the Clean Water Act, exceeds the federal government’s authority under the Commerce Clause and violates the Administrative Procedure Act.
“The Agencies have made two attempts to expand federal jurisdiction over traditionally state-regulated waters,” wrote Pruitt in his lawsuit. “The United States Supreme Court has rejected both attempts.”
One case was in 1986 when the federal government asserted jurisdiction over intrastate waters “which are or would be used as habitat” by either migratory birds that cross state lines or endangered species. It would have allowed the federal government to regulate completely intrastate waters, extending federal jurisdiction to even isolated, seasonal ponds.
“The Supreme Court found the “Migratory Bird Rule’ would result in a significant impingement of the States’ traditional and primary power over land and water use,” argued Pruitt. The court sugggested the administrative interpretation altered the federal-state framework by permitting federal encroachment upon a traditional state power.
Twenty years later, the court again handled a similar case called Rapanos where the EPA and the Army Corps of Engineers tried to include non-navigable tributaries of traditional navigable waters under their jurisdiction.
The plurality opinion was authored by Justice Antonin Scalia and rejected the “expansive theory advanced by the Corps” which would have brought all planning and development and use of land and water resources by the States under federal control. Justice Anthony Kennedy also rejected the government’s “waters of the United States” defnition.
“The federal government’s approach was invalid, said Kennedy because it permitted federal regulation whenever wetlands lie alongside a ditch or drain, however remote and insubstantial, that eventually may flow into traditional navigable waters.”
Having pointed out the Supreme Court decision in Rapanos, Pruitt argues the definition of a tributary as the Agencies see it would give them jurisdiction over ponds, streams and usually dry channels.
“It thus violates Rapanos plurality’s test because it allows jurisdiction over a water with any flow into a primary water, even if it does not have a continuous surface connection,” argued Pruitt in the 24 -page lawsuit.