The U.S. Chamber of Commerce, the Kentucky Chamber of Commerce, and other associations filed a lawsuit in the U.S. District Court for the Eastern District of Kentucky against the Environmental Protection Agency (EPA) and the Army Corps of Engineers challenging their new Waters of the United States (WOTUS) rule.
The new rule greatly expands the agencies’ authority, using vaguely described terms to cover millions of acres of water and land features, including ponds, farms and backyards. As a result, landowners, businesses, and farmers will be forced to hire expensive consultants and experts to figure out whether they need permits to use their land. If they guess wrong, they may face severe penalties.
“While the Administration has laid out ambitious climate and infrastructure goals, they will not be achievable with this Waters of the United States rule, which creates needless uncertainty and endless red tape and requires businesses of all sizes to navigate an expensive and time-consuming permitting process,” said Marty Durbin, Senior Vice President of Policy at the U.S. Chamber of Commerce. “Given the significant legal and practical problems raised by the rule, the Chamber and our partners have filed a lawsuit to bring clarity to this issue once and for all.”
“Businesses and landowners in Kentucky and across the country need predictable, stable regulations that stay within the bounds of the law and provide clear, workable rules of the road for private enterprise,” said Ashli Watts, President and CEO at the Kentucky Chamber of Commerce. “Federal, state, and local government agencies all have a role to play as partners with business in protecting clean water and the environment – but each agency must stay in its lawful lane and avoid overreach. We and our fellow plaintiffs are bringing this lawsuit to protect the interests of our members and promote a regulatory environment that is fair, economically sustainable, and legally durable."
For decades, WOTUS regulations have been the subject of regulatory and legal ping-pong. The previous Administration attempted to bring clarity and comply with legal requirements by providing clear, easily applied definitions. Now, the Biden Administration is creating uncertainty through expansive, vague tests for determining federal jurisdiction that exceed the federal government’s statutory authority and are very difficult to use or understand.
The agencies chose to move forward with the new rule despite an impending Supreme Court ruling in the Sackett v. EPA case, which is expected to provide the agencies with crucial guidance on the meaning of the statutory term “waters of the United States.” The Chamber believes that the Administration should have waited to hear from the Supreme Court before issuing confusing, burdensome new regulations that are likely to be rendered out of date by the Court’s impending decision.
The Chamber will be asking the court to stop the WOTUS rule from going into effect while the litigation is pending by issuing an injunction, and ultimately to find the rule invalid.
The Associated General Contractors of Kentucky, the Home Builders Association of Kentucky, the Portland Cement Association, and the Georgia Chamber of Commerce are also co-plaintiffs in the lawsuit. Elbert Lin, Matthew Z. Leopold, Kerry L. McGrath, and Erica N. Peterson of Hunton Andrews Kurth LLP, Charles E. English, Jr., Sarah P. Jarboe, and LaJuana S. Wilcher of English, Lucas, Priest & Owsley, LLP, and the U.S. Chamber’s Litigation Center served as co-counsel for the U.S. Chamber.