States Urge EPA To Cut Obama Era WOTUS Rule

Tim Pearce | Energy Reporter

The attorneys general of 20 states are urging the Environmental Protection Agency (EPA) to cede some control of water resources by cutting an expansive, Obama-era rule.

The group of attorneys general, lead by West Virginia and Wisconsin, sent a letter Monday to EPA Administrator Scott Pruitt, urging a quick conclusion to an agency review of a rule that allows the Army Corps of Engineers to monitor irrigation ditches as broadly defined “waters of the United States [WOTUS].”

“The WOTUS rules are a blatant power grab by the EPA,” Texas Attorney General Ken Paxton said in a press release. “The federal government exceeded its statutory authority by attempting to regulate areas that Congress never intended to be under federal jurisdiction, and directly infringed on the states’ ability to regulate their own natural resources.”

President Donald Trump urged the EPA to finish the review earlier in 2017, issuing an executive order in late February to implement, change, or shred the rule defining WOTUS under the Clean Water Act (CWA) in accordance with the 2006 Supreme Court decision Rapanos v. United States.

“It’s a horrible, horrible rule. Has sort of a nice name, but everything else is bad,” Trump said at the February signing ceremony.

The attorneys general letter requests the EPA redefine waters of the United States in the CWA to match the definition outlined in the 2006 Supreme Court decision.

In the 2006 decision, Justice Antonin Scalia defines waters of the United States as “only those relatively permanent, standing or continuously flowing bodies of water.” Scalia’s definition excludes anything that is not a lake, ocean, river or stream, a significant reduction from what the Army Corps of Engineers previously monitored under the CWA.

Before the 2006 decision, the Corps asserted control of any waterway “through which rainwater or drainage may occasionally or intermittently flow … including storm drains, roadside ditches, ripples of sand in the desert that may contain water once a year, and lands that are covered by floodwaters once every 100 years,” according to the Rapanos v. United States decision.

The EPA implemented the Rapanos decision’s definition in 2007 and 2008. In 2015, however, the EPA again expanded what the CWA means by WOTUS to include irrigation ditches and broadly defined tributaries to “jurisdictional water,” The Daily Caller reported in 2015.

The U.S. Court of Appeals for the Sixth Circuit stayed the Obama era expansive definition in 2015 after 18 states protested the rule. Because of the stay, the definition for waters of the United States has reverted to what it was in 1986, before the Rapanos v. United States decision.

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