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W.Va. attorney general joins fight again waters rule

MARTINSBURG, W.Va. — West Virginia Attorney General Patrick Morrisey has joined nine other state attorneys general in a lawsuit challenging a new rule defining the waters of the United States.

Known as the WOTUS rule, the final draft was issued May 27 by the U.S. Environmental Protection Agency and U.S. Corps of Engineers under the authority of the Clean Water Act. The rule was published Monday in the Federal Register. It will take effect Aug. 28.

“This rule is a staggering overreach by the federal government and violates the very law it claims to enforce,” Morrisey said Tuesday in a news release announcing the lawsuit. “It will 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 fetilizers.”

Critics of the rule argue that it overly expands the definition of navigable waters, broadening the regulatory oversight of the government agencies and making property owners get permits for several mundane activities like mowing fields. Violations could result in fines of up to $37,500 a day, according to published reports.

“Any little dip, mud hole, wet-water spring that ever had water in it is deemed a Water of the United States,” Cam Tabb, a Jefferson County farmer and vocal opponent of the rule, said Tuesday in a telephone interview. “It’s not only farmers. It’s any landowner that has water flow or catch-water that would be deemed a waterway. Who would ever dream that a ditch that might have water in it every 10 years is a navigable water. It’s layer upon layer of bureaucracy that we don’t need.”

Tabb is grateful that Morrisey is taking part in the lawsuit.

“The problem is we have a business to operate, cows to feed. There’s more people working against us than working for us,” Tabb said. “We’re depending on (Morrisey) to stay in the forefront of this fight. He, at least, understands.”

In the complaint filed Tuesday in the U.S. District Court for the Southern District of Georgia, the attorneys general of West Virginia, Alabama, Florida, Georgia, Kansas, Kentucky, South Carolina, Utah and Wisconsin argue that the final rule 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, according to Morrisey’s news release.

The complaint asks a federal judge to declare the rule illegal and issue an injunction to prevent its enforcement. The complaint also wants the judge to order the agencies to write a new rule that complies with the law and honors states’ rights.

A copy of the complaint that Morrisey has joined can be found at

Several other lawsuits have been filed by other groups of states. Close to 30 states have joined together in various suits over the WOTUS rule.

In the executive summary of the WOTUS rule, the EPA and Army Corps of Engineers state, “In this final rule, the agencies clarify the scope of “waters of the United States” that are protected under the Clean Water Act (CWA), based upon the text of the statute, Supreme Court decisions, the best available peer-reviewed science, public input, and the agencies’ technical expertise and experience in implementing the statute. This rule makes the process of identifying waters protected under the CWA easier to understand, more predictable, and consistent with the law and peer-reviewed science, while protecting the streams and wetlands that form the foundation of our nation’s water resources.”

The WOTUS rule can be found on the Federal Register’s website at

– Staff writer John McVey can be reached at 304-263-3381, ext. 128.

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