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Rutledge: EPA Should Ensure Respect for State Authority and Expertise in WOTUS Review


June 20, 2017

Final definition should be consistent with intent of Clean Water Act

LITTLE ROCK – Arkansas Attorney General Leslie Rutledge urged the Environmental Protection Agency (EPA) to preserve the role of the states in protecting the nation’s waters as part of the agency’s ongoing review of its Waters of the United States rule as ordered by President Donald J. Trump in February.

The 20-state bipartisan comment letter filed Monday outlined regulatory overreach in the existing rule and offered suggestions to better respect the authority of states moving forward.

“Properly defining Waters of the United States must be done in a way that respects the intent of Congress under the Clean Water Act,” said Attorney General Rutledge. “In its current, overly broad form, the Waters of the United States rule places the burden on our farmers and ranchers and ignores the traditional role of the states to protect its water.”

The letter suggests that the EPA and the U.S. Army Corps of Engineers revise the definition of “Waters of the United States” in a manner that preserves the states’ role in protecting water resources, especially those within the border of the individual states. The attorneys general also suggest any final definition should adopt a framework consistent with U.S. Supreme Court precedent that includes that federal agencies can only assert authority over permanent, standing or continuously flowing bodies of water forming geographic features that are described in ordinary parlance as streams, rivers, oceans and lakes. The letter expresses that rather than claiming jurisdiction over vast amounts of water and land, the EPA and Army Corps of Engineers should consider the active role each state already plays in safeguarding its waterways.

Rutledge was part of the lawsuit that resulted in a nationwide injunction, blocking enforcement of the current rule, which proved crucial in providing time for the new administration to conduct this review.

The current rule, issued in June 2015, allowed the EPA and Army Corps of Engineers to assert federal authority over an untold number of small bodies of water, including roadside ditches, short-lived streams and any other areas where water may flow once every 100 years.

Rutledge is joined by the attorneys general of Alabama, Alaska, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Nevada, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia and Wisconsin.

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