Nevada joins suit challenging federal waters rule

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CARSON CITY, NV – Governor Brian Sandoval has authorized Nevada Attorney General Adam Paul Laxalt to join a lawsuit challenging a new federal rule that significantly expands the scope of waters subject to pollution controls under the Clean Water Act.

Sandoval released a strongly worded statement in late June after the United States Environmental Protection Agency (EPA) and U.S. Army Corp of Engineers issued a Final Rule that he believes goes too far and does not adequately address Nevada’s concerns.

The Nevada Department of Conservation and Natural Resources, Nevada Department of Agriculture, and the Colorado River Commission of Nevada submitted significant comments on the Clean Water Act Proposed Rule, according to Sandoval’s office.

“Nevadans have worked together for generations to conserve, protect, and maintain our precious natural resources. Nevada has been, and continues to be, a willing partner with federal agencies and administrative bodies,” Governor Sandoval said in his statement.

“Upon release of the Final Rule, it was evident that Nevada’s comments were not addressed by the federal agencies,” he said.

The EPA claimed in statements that the new rule was simply intended to clarify which waters are protected by federal anti-pollution provisions.

“To clearly protect the streams and wetlands that form the foundation of the nation’s water resources, the agencies developed a rule that ensures waters protected under the Clean Water Act are more precisely defined, more predictably determined, and easier for businesses and industry to understand,” the EPA said in a statement.

At issue in the lawsuits filed by states is EPA jurisdiction over rivers, streams, lakes or marshes. The Clean Water Act of 1872 grants federal regulatory authority over navigable waters, but the definition of “navigable” is disputed.

Texas, Mississippi, and Louisiana asked a federal court in Houston to declare unconstitutional the Clean Water Act rule, calling it an “impermissible expansion of federal power over the states.”

A second lawsuit, brought by a coalition of 13 states including Nevada, was filed in U.S. District Court in North Dakota. Joining Nevada in the lawsuit were Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, New Mexico, North Dakota, South Dakota and Wyoming.

The complaint filed in Texas says the rule fails to account for duration of water flow, suggesting federal agencies can assert jurisdiction over “dry ponds, ephemeral streams, intermittent channels and even ditches.”

In a special column to the Las Vegas Review-Journal on July 13, Laxalt called the rule “astonishing” in its scope.

“Left unchecked, the new rule extends federal regulatory power over vast portions of Nevada, displacing state and local governments as the primary regulator of intrastate waters,” wrote Laxalt.

Included in Laxalt’s list of concerns about the rule was the creation of a new category called “other waters,” allowing federal authorities to exert additional jurisdiction on a case-by-case basis.

“The only waters that will clearly escape federal embrace are those included in the short list of exemptions,” wrote Laxalt.

“Puddles made the cut.”

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