CHARLESTON, WV (LOOTPRESS) — West Virginia Attorney General JB McCuskey is co-leading with Nebraska an amicus brief defending Jeffrey Andrews, a Connecticut farmer who is facing $2 million in federal fines for allegedly violating the Clean Water Act (CWA). The amicus, or friend of the court, brief was signed by attorneys general from West Virginia, Nebraska and 21 other states and argues that states, not the federal government, should control most water regulation within their borders.
The federal government sued Andrews, alleging he discharged fill material—which they called “pollutants”—into approximately 13.3 acres of wetlands on his property without a required permit.
The brief, filed in Andrews v. United States, argues that federal courts continue to ignore the Supreme Court’s clear 2023 ruling in Sackett v. EPA, which strictly limited federal jurisdiction over wetlands under the Clean Water Act. The Court ruled that federal jurisdiction extends only to wetlands with a “continuous surface connection” to navigable waters—meaning wetlands that are “as a practical matter indistinguishable” from traditional navigable rivers, lakes, and streams. The decision was intended to end decades of confusion and restore the state-federal balance Congress originally intended.
“The Supreme Court has spoken three times on this issue, yet lower courts still refuse to respect the constitutional limits on federal power. A farmer shouldn’t face $2 million in fines because rainwater temporarily runs across his land. This federal overreach tramples on state sovereignty and costs landowners, businesses, and taxpayers trillions of dollars,” Attorney General McCuskey said.
The brief details how federal agencies have repeatedly exceeded their statutory authority over the past 50 years, despite Congress’s clear intent to preserve state control over water regulation. Since the Founding, states have held primary responsibility for regulating waters within their borders, and at least 30 states—including West Virginia—have their own comprehensive wetland protection laws.
The states are asking the Supreme Court to hear this case and issue a quick reversal, reminding lower courts that the federal government’s power over wetlands is limited to only those waters Congress authorized it to regulate.
This amicus brief follows Attorney General McCuskey’s recent leadership of a 20-state coalition that submitted formal comments to the Trump Administration supporting reforms to the Waters of the United States (WOTUS) definition.
Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas and Wyoming joined West Virginia and Nebraska in the brief.
Read the brief here.
