Attny. General Jack Conway files lawsuit against EPA over Waters of the U.S. rule

06/30/2015 11:27 AM

Fresh off the heels of a multiyear fight against the Environmental Protection Agency over coal regulations, Attorney General Jack Conway is announcing another suit against the federal EPA over waterways.

In late May the EPA and Army Corps of Engineers finalized a rule regulating waterways of the United States, which some farmers and Republican lawmakers have openly worried could turn into a federal land grab.

Conway, who is running for governor, announced on Tuesday that he was joining eight other state Attorneys General in a lawsuit asking a federal court to block the EPA rule on the grounds that the rule “unlawfully expands the federal government’s regulatory reach over local streams, lands and farms,” according to a press release.

“In order to best protect the citizens, farmers, and the taxpayers of the Commonwealth, I am challenging this overreaching rule imposed by the EPA,” Conway said in a statement. “This finalized rule, in my opinion, is illegal. This overly burdensome rule flies in the face of the tradition of environmental regulation, which is to allow states to develop their own responses in how they deal with what’s required by the Clean Water Act.

“By challenging this rule, we continue to fight a long-term battle regarding an overreach by the EPA under this administration. I will fight this battle every step of the way.”

At the time the rule was finalized EPA head Gina McCarthy said fears of overreach are unfounded under the finalized version of the rule.

“It does not interfere with private property rights or address land use,” McCarthy said. “It does not regulate any ditches unless they function as tributaries. It does not apply to groundwater or shallow subsurface water, copper tile drains or change policy on irrigation or water transfer.”

McCarthy said the rule is intended to clarify which waterways in the nation are subject to the Clean Water Act. In effect, the EPA would only regulate 3 percent more land under the new rule, McCarthy added.

However, Conway, D-Louisville, now finds himself joining the likes of U.S. Sen. Mitch McConnell who say the law could pose a financial burden to farmers.

In a press release the office of the Kentucky Attorney General says the 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.”

A complaint was filed Tuesday in U.S. District Court for the Southern District of Georgia, with Attorneys General from West Virginia, Alabama, Florida, Georgia, Kansas, Kentucky, South Carolina, Utah and Wisconsin arguing the rule as written “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.”

The complaint asks the federal judge to strike down the rule, and draft a new rule in compliance with the law.

The full complaint is available to view here.

Conway faces Republican Matt Bevin and Independent Drew Curtis in the race for governor.

The issue also plays a role in other statewide races with Rep. Ryan Quarles, R-Georgetown calling on a halt to the EPA rule throughout his campaign for state agriculture commissioner.

In a statement Quarles said he understands firsthand the consequences of EPA rule making.

“As the son of a family farmer and legislator, I have seen firsthand the consequences of federal overreach. Kentucky farmers and coal miners are lambasted with overregulation,” Quarles said. “Even Jack Conway, a man who has attempted to whitewash his record, understands that a successful candidate must offer full-throated opposition to these economically devastating schemes.”

“The proposed “Waters of the U.S.” regulation from the EPA will kill Kentucky jobs and give Washington unprecedented control over our farms and agribusinesses,” he added. “As Commissioner of Agriculture, I will dedicate myself to pushing back against just these sorts of harmful regulations.”


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