Tennessee lawmakers charge states' rights face soaking under EPA's new water regulations

Herbert Slatery
Herbert Slatery

NASHVILLE - Calling it a states' rights issue, 63 Tennessee lawmakers on Wednesday urged Tennessee Attorney General Herbert Slatery to join a lawsuit challenging the Obama administration's new rule allowing the federal government to regulate tributaries to rivers and streams.

That's nearly half of the 132-member General Assembly.

State Rep. Sheila Butt, R-Columbia, said in a news release that she and other lawmakers want Slatery to join the suit filed by 27 states challenging the Environmental Protection Agency's new "waters of the United States" rule.

"I understand there is a cost to litigation," Butt said. "However, the cost of implementing this rule to the agriculture industry and the personal property rights of Tennesseans would be far more devastating."

Slatery spokesman Harlow B. Sumerford said "our office has received the letter and we appreciate the input from legislators. We are currently in conversations with our client, Tennessee Department of Environment and Conservation, regarding the matter."

Tennessee lawmakers' call came a little over a week after Georgia Attorney General Sam Olens and attorneys general from seven other states initially filed the lawsuit in U.S. District Court in Southern Georgia.

photo Herbert Slatery

The action challenges the constitutionality of EPA's new rule under the federal Clean Water Act. It redefines states' streams, creeks, ponds and wetlands as the "waters of the United States," critics said.

Such regulation has traditionally been left up to states.

In their letter, the lawmakers charge the rule "violates the Clean Water Act, the Administrative Procedure Act, the U.S. Constitution and usurps the authority of the states for the primary responsibility of management, protection and care of intrastate waters."

EPA's proposed rule was a favorite punching bag last year for U.S. Sen. Lamar Alexander, R-Tenn., during his re-election. In a debate before the Tennessee Farm Bureau, Alexander charged that "what the Obama administration is trying to do is to take that law and apply it to - literally - mud puddles, to apply it to standing water on your farms."

Renee Hoyos, executive director of the Tennessee Clean Water Network, said Wednesday such criticisms "are talking points right out of the Farm Bureau and they're untrue."

The regulation "doesn't change a lot in Tennessee," Hoyos said. "There's maybe a handful of streams in this state that this would really affect. We were really supportive of the rule.

"They keep bringing up farmers," she added. "You can't get the farmers through the Clean Water Act. Heck no, they can bushwhack, they can let their cows run in and out of the stream, poop in the stream, die in the stream, give birth in the stream."

Hoyos said the Clean Water Act has "carved out a fat exemption" for agricultural interests. "They basically have to get their Caterpillar into the stream and make stream channel changes. And even then it might not apply, depending on the circumstances."

Olens' office said when filing the lawsuit that it would extend the EPA and U.S. Army Corps of Engineers' regulatory reach to "an untold number of small bodies of water, including roadside ditches and short-lived streams or any other area where the agencies believe water may flow once every 100 years."

In Tennessee lawmakers' letter to Slatery, they said, "due to the extreme consequences of the regulations in the new EPA and Army Corps of Engineers waters of the U.S. rule, we, the undersigned, request that you join twenty-seven other states who are challenging the rule that was finalized in May and would take effect at the end of August."

Fifty-one Tennessee representatives - a majority of the 99-member state House - signed the letter. All but two are Republican. Twelve Senate Republicans also signed the letter.

Contact staff writer Andy Sher at 615-255-0550 or asher@times freepress.com.

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