“It comes down to one phrase of ‘navigable waters.’ It used to mean one thing and now the EPA is redefining the term,” Adam Laxalt, Nevada Attorney General told a small crowd of 60 Mesquite citizens Monday night.


Nevada Attorney General Adam Laxalt visited Mesquite Monday night to discuss a lawsuit the state joined with 12 others to fight new waterway oversight rules recently issued by the Environmental Protection Agency. Photo by Barbara Ellestad.

The Environmental Protection Agency recently released new rules that could expand its federal jurisdiction over a broad swath of new waterways. Previously small bodies of water like ditches or small private streams were solely managed under state laws, if at all.

Laxalt explained that road side ditches and areas that only hold water for a short period of time may now come under the purview of the federal government. Under the new EPA guidelines, public and private landowners will not only have to obtain state-level permits but also federal government permits for water management.

“It adds a whole other level of bureaucracy,” Laxalt said. “We believe it’s a clear example of federal overreach. It’s about the federal government having some authority and states having other authorities. It’s all about power. It’s not about protecting the environment.”

He contends it adds an antagonistic relationship that “none of you can do anything about.”

Laxalt instructed his Solicitor General Lawrence VanDyke to join 12 other states in a lawsuit filed in North Dakota to prevent the new rules from taking effect. VanDyke told the crowd that the states filed a preliminary injunction on Monday to delay the action until the lawsuit could be heard in federal court.

“Once it goes into effect, you can’t put the genie back in the bottle. This is a bipartisan lawsuit. There were a number of Democratic states that joined in this lawsuit,” Laxalt said.

“One of the real problematic parts of this rule is the way they wrote the rule. They wrote it in such a fashion that it’s incredibly ambiguous,” Laxalt added. That creates a situation that could potentially cause challenges to the new ruling to be tied up in courts for months and years and cost thousands of dollars for private businesses and landowners.

Turning politically partisan, Laxalt said that “anything this president (Barack Obama) can’t get politically, anything he can’t get Congress to push, he’s just going to lean on his agencies to take existing laws and stretch and stretch and stretch. There’s this antagonistic relationship where the federal bureaucracy doesn’t want to work with us. They don’t want to come up with accommodation. They want to squish states and businesses. It’s something we’re going to face for a few more years.”

He told the audience that 38 states are “chomping at the bit to do something” about the new rules that are scheduled to go into effect Aug. 28. In addition to numerous lawsuits filed around the country trying to block the EPA’s action, Laxalt said 30 states signed a letter to the agency asking it to “pause the rule while the courts take a look at it and see if it was done the proper way.”

“We haven’t heard back from the EPA yet. That’s why we filed the injunctive motion today,” he said.

In response to a question from the audience on the chances of success with the lawsuit, VanDyke explained that two similar state lawsuits were filed in the past against the EPA. “Both times the U.S. Supreme Court slapped down the EPA and said they had overreached their authority. I think we have really good arguments. I think we have a really good chance.”

VanDyke later told the Mesquite Local News that the lawsuits could take up to three years to reach the Supreme Court. Laxalt also told MLN that “we have a very good shot with the Supreme Court but you just never know with litigation.”

“Shame on Congress,” Laxalt added. “They continue to delegate authority to the President time and time again. Presidents, Republican and Democrat, can’t resist the temptation to expand (their authority). We need to get the political will to push back.”

He went on to say that even the Supreme Court has said Congress could stop the executive expansion of power through funding mechanisms. “Unfortunately right now, that’s just not happening.”

States joining the lawsuit with Nevada and North Dakota are Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, New Mexico, South Dakota and Wyoming.

Laxalt’s visit to Mesquite was sponsored by Americans For Prosperity, which bills itself as “Nevada’s largest conservative advocacy group.”