Rutledge: The EPA’s Proposed WOTUS Rule is ‘Complicated, Overreaching and Infringes on States’ Rights’Tue, Mar 24, 2015
In testimony before the Senate Agriculture Committee, Attorney General Rutledge says, ‘My office will pursue all legal challenges necessary to prevent an unlawful rule from impacting the State of Arkansas.’
WASHINGTON, D.C. – Arkansas Attorney General Leslie Rutledge today appeared before the U.S. Senate Committee on Agriculture, Nutrition and Forestry to offer testimony and respond to member’s questions on the Environmental Protection Agency’s (EPA) “waters of the United States” (WOTUS) proposed rule.
“WOTUS expands the Clean Water Act beyond the intent of Congress and adds greater confusion and uncertainty for the agriculture community. As the first conservationists protecting the land and water, farmers and ranchers want to follow the law, but this proposal simply goes too far. My office has urged the agencies to withdraw the rule and will pursue all legal challenges necessary to prevent an unlawful rule from impacting the State of Arkansas,” Rutledge said.
A copy of Rutledge’s written testimony is available here.
Rutledge’s remarks are below, as prepared for delivery:
Good Morning, Chairman Roberts, Ranking Member Stabenow, members of the Committee. I am Leslie Rutledge, Attorney General of Arkansas. It is an honor to appear before this committee that includes my own Senator John Boozman. As Arkansas’s Chief Legal Officer, I wish to raise concerns with the proposed rule to amend the definition of “waters of the United States” under the Clean Water Act, and the practical effects this unlawful expansion of federal jurisdiction will have on the Delta farm region in east Arkansas and the timber industries of the southwest. I grew up on a cattle farm near Batesville close to the White River, and understand the impact this proposed rule would have on agriculture.
The Clean Water Act achieves its regulatory goals through jurisdiction over “navigable waters,” which it defines as “waters of the U.S.” The EPA and the Corps of Engineers have attempted to define and interpret “waters of the U.S.” through regulation. Often, the agencies’ interpretation was applied too broadly and was struck down by the U.S. Supreme Court.
Recently, in the Rapanos case, a test emerged that requires the water or wetland in question to possess a “significant nexus,” or connection, to traditionally navigable waters. The agencies assert that the proposed rule is necessary to clarify the test. But nothing in the proposed rule offers clarity. Instead, it is complicated, overreaching and infringes on states’ rights.
First, the proposed definition of “tributary” goes beyond the “significant nexus” test. In Rapanos, Justice Kennedy stated that the Clean Water Act would not apply to drains, ditches, and streams remote from any navigable water and carrying only minor water volumes toward it. However, the agencies expand the definition of tributary to include waters that contribute flow whether directly or through another source.
Even a trickle or roadside ditch can be characterized as “flowing water.” An irrigation canal running through farmland to a local creek could be covered under the proposed rule in direct contradiction to Kennedy’s holding.
Second, the proposed “case-specific” determination of what qualifies a “significant nexus” is vague and ambiguous causing confusion and extra costs for states and business owners. The Supreme Court has stated that administrative rules cannot be so vague that they fail to provide a reasonable opportunity to understand what is prohibited.
The vague terms used in the proposed rule would confuse a “reasonable” person. Farmers and business owners should not have to wait until faced with a penalty to learn that the stream or wetland on their property now falls under the Clean Water Act. Regardless of size, no farm or ranch can operate under such conditions.
At the same time as this rule was proposed, the agencies released an “interpretive rule” to clarify “normal farming practices.” The Delta Region is home to advanced cutting-edge farming technologies that are not considered “normal” in other parts of the country, but provide benefits to our farmers, and the environment through efficient use of water and fertilizer. Although the rule was withdrawn, it is an example of the EPA attempting to arbitrarily expand the Act without public notice and comment.
The scope of the proposed rule will have negative impacts on Arkansas beyond the legal arguments. In 2012, agriculture added over $20 billion to the Arkansas economy. That’s eighteen (18) cents of every dollar of Value Added, one in every six jobs. Arkansas is first in rice production, third in cotton, fifth in timber and tenth in soybeans and grain. Clearly, overreaching administrative rules would put this sector of our economy in jeopardy.
As the first conservationists protecting the land and water, farmers and ranchers want to follow the law. Restrictive and confusing administrative rules will inhibit their ability to farm and drive future generations out of agriculture; ultimately impacting the food supply of all Americans. My office has urged the agencies to withdraw the rule and will pursue all legal challenges necessary to prevent an unlawful rule from impacting the State of Arkansas.
Thank you again Mr. Chairman for the opportunity to appear before you today. This concludes my testimony, and I am happy to answer any questions you or the other members of the Committee may have.
Rutledge Accepts Invitation to Testify Before Senate Committee on Agriculture, Nutrition and ForestryFri, Mar 20, 2015
WASHINGTON, D.C. – Arkansas Attorney General Leslie Rutledge announced today that she has accepted an invitation to appear on Tuesday, March 24, before the U.S. Senate Committee on Agriculture, Nutrition and Forestry for a hearing on the Environmental Protection Agency’s (EPA) “waters of the United States” (WOTUS) proposed rule. Rutledge released the following statement:
“It is an honor for me to accept the invitation of Chairman Pat Roberts to appear before the Senate Committee on Agriculture, Nutrition and Forestry. While the EPA and the U.S. Army Corps of Engineers have repeatedly offered assurances that agriculture stakeholders need not worry about the scope of the proposed definition of ‘waters of the United States,’ the agriculture community in Arkansas is worried that everyday tasks such as plowing and the appropriate application of pesticides and fertilizer will subject them to federal jurisdiction under the Clean Water Act. Any farmer or rancher who has flowing water, regardless of size, through their land would be covered under the proposed rule and thus in potential violation of law.
“In 2012 alone, Agriculture added $20.1 billion to the Arkansas economy, but farmers, like those in the Arkansas Delta, are facing new challenges every day to help feed consumers at home and abroad. This proposed rule has caused widespread concern, and I commend the Committee for examining its impact.”
On April 21, 2014, the EPA and the Corps published a proposed rule to amend the definition of “waters of the United States” under the federal Clean Water Act (CWA). This rule purports to clarify the agencies’ regulatory jurisdiction under the CWA based on rulings in several U.S. Supreme Court cases.
The hearing will include two panels of witnesses. Rutledge will appear on the first panel which, will also include Dr. Donald van der Vaart, Secretary of the North Carolina Department of Environment and Natural Resources; Susan Metzger, Assistant Secretary of the Kansas Department of Agriculture; and Josh Baldi, Regional Director of the Washington State Department of Ecology.
The hearing, which is open to the public, is scheduled to begin at 9 a.m. CT. A live video stream, provided by the Committee, will be broadcast here.
Arkansas’s senior U.S. Senator John Boozman is a member of the Committee and is currently the chairman of the Subcommittee on Commodities, Markets, Trade and Risk Management.
Rutledge Comments on Arkansas Supreme Court Decision to Uphold the State’s Lethal Injection StatuteThu, Mar 19, 2015
LITTLE ROCK – Arkansas Attorney General Leslie Rutledge issued the following statement after reviewing the decision of the Arkansas Supreme Court to uphold the State’s lethal injection statute:
“I am pleased that the State’s highest Court has upheld the constitutionality of Arkansas’s death penalty law that provides for executions to occur by lethal injection. I am hopeful that this decision will allow the convictions of those on death row to move forward so that some closure and justice is brought to the families of the victims. As Attorney General, I remain committed to working with the General Assembly to strengthen the State’s death penalty law even further.”
Rutledge Announces Pulaski County Man Pleads Guilty to Child Pornography ChargesThu, Mar 19, 2015
LITTLE ROCK – Arkansas Attorney General Leslie Rutledge announced today that a Pulaski County man has pleaded guilty to child pornography charges and has been sentenced to 20 years in the Arkansas Department of Correction on five counts of distributing, viewing or possessing sexually explicit conduct involving a child, a Class C felony. Rutledge released the following statement:
“As Arkansas’s chief law enforcement officer, I will not allow Arkansas’s children to be preyed upon by online predators. I appreciate the hard work of the Cyber Crimes Unit in my office and the Jacksonville Police Department for conducting a thorough investigation to make sure this individual does not continue to exploit children.”
David Raymond West, 70, of Jacksonville pleaded guilty and was sentenced today by Pulaski County Circuit Judge Leon Johnson. West will be required to register as a sex offender.
Agents with the Attorney General’s Cyber Crimes Unit arrested West in Nov. 2013 after executing a search warrant at West’s residence. Agents conducted a forensic exam on West’s computer and found evidence that he downloaded and viewed child pornography.
The Jacksonville Police Department assisted in the arrest and investigation.
Rutledge: EPA’s Proposed Ozone Rule is Harmful to the State of ArkansasWed, Mar 18, 2015
LITTLE ROCK – Arkansas Attorney General Leslie Rutledge announced today she has submitted comments in a letter to the Environmental Protection Agency (EPA) concerning its proposed revision of the National Ambient Air Quality Standard for Ozone. The EPA’s proposed rule states that the agency is considering a standard somewhere between 65 and 70 parts per billion, but that it is also seeking comments regarding a standard as low as 60 parts per billion. Rutledge released the following statement:
“I am very concerned that the proposed levels are unnecessary and unachievable, and would bring great harm to Arkansas through significant job losses and a lack of economic development opportunities. At the current standard of 75 parts per billion, only a small part of the state is not likely to meet the standard, but at the proposed 60 parts per billion, the entirety of the state would likely have trouble attaining such a standard.”
Rutledge points out in the letter that the Clean Air Act does not require the standard be lowered every time it is reviewed but does require the EPA to review air quality standards every five years. The current level of 75 parts per billion was set in 2008.
“So long as the standard is protective of human health and the environment, it can remain unchanged,” Attorney General Rutledge wrote.
In addition to these comments, Rutledge and 13 other state attorneys general have sent a letter to EPA Administrator Gina McCarthy further explaining the harmful, negative impact the rule would have on states across the country.
“The proposed rule will have a dramatic negative effect on the economic growth in the States, saddling increasingly heavy compliance costs on job creators – particularly in the manufacturing and industrial sectors,” the attorneys general wrote. “Thus, if promulgated, the proposed rule will hamper the creation and preservation of good-paying jobs in the States and quicken the movement of such jobs overseas.”
The letter was signed by the attorneys general of Alabama, Arkansas, Georgia, Kansas, Kentucky, Louisiana, Montana, Nebraska, North Dakota, Ohio, South Carolina, West Virginia and Wisconsin.
On Feb. 26, Rutledge appeared before the U.S. House of Representatives Oversight Subcommittee on the Interior to offer testimony on the impact of this proposed rule, and several others, from the EPA. Click here for a copy of Rutledge’s opening statement or a video can be found here.
A copy of the comments submitted to the EPA from the State of Arkansas can be found here.
A copy of the letter sent by Rutledge and 13 other state attorneys general can be found here.
Rutledge Urges ATF to Discard Controversial Ammo ProposalTue, Mar 17, 2015
LITTLE ROCK – Arkansas Attorney General Leslie Rutledge and 22 other state attorneys general have sent a letter to the Bureau of Alcohol, Tobacco and Firearms (ATF) urging the agency to permanently discard a proposed ban on M855 5.56 x 45mm ammunition. On March 10, ATF shelved the proposal after an outpouring of opposition, including from the law enforcement community, but the agency plans to continue to accept public comments on the proposal. Rutledge released the following statement:
“I am proud to join 22 of my colleagues from across the country to urge the ATF to drop any further consideration of this proposed ban on ammunition that only serves to target the top-selling rifle in the country, the AR-15 semi-automatic. Many Arkansas sportsmen and target shooters use this type of bullet, and this is yet another attempt by the Obama Administration to do an end-run around Arkansas’s elected representatives in Congress.”
Following its latest decision to shelf the proposal, the ATF indicated it would continue to take public comment until the close of business on March 16. In the letter submitted to the ATF yesterday, Rutledge and the other attorneys general contend that the proposed ban is arbitrary, unnecessary and could easily lead to bans on a wide range of rifle ammunition.
“We applaud your recent decision not to issue a final framework on this proposal, at least for now, and we strongly encourage you not to revive it,” the attorneys general wrote. “We represent our respective states as each state’s Chief Law Enforcement Officer, and in that role we directly oversee or work directly with numerous federal, state, tribal and local law enforcement agencies. We, as much as anyone, want to do the utmost to ensure that our brave men and women that serve in law enforcement are safe. The proposed ATF ban on M855 5.56 ammunition, however, does not advance that goal. Instead, it threatens Second Amendment freedoms and deprives shooting sports enthusiasts of a popular cartridge for a popular rifle.”
The attorneys general highlighted the opposition to the ban voiced by law enforcement organizations.
“As law enforcement organizations, such as the Fraternal Order of Police, have recently described, the 5.56 M855 cartridge does not pose a particular threat to law enforcement. Indeed, we are aware of no examples in our states in which this round has been used against law enforcement in a concealed weapon.”
In closing, the 23 attorneys general urged ATF “to reject this ill-advised proposal and uphold the Second Amendment rights of our citizens.”
The letter was signed by the attorneys general of Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Texas, Utah, and Wyoming.
A copy of the letter can be found here.