Morrisey, other officials say EPA definition of water makes no sense

By Chris Dickerson | Oct 10, 2014

CHARLESTON – West Virginia Attorney General Patrick Morrisey, 10 other state attorneys general and six governors are challenging how the U.S. Army Corps of Engineers and Environmental Protection Agency plan to change the definition of “Waters of the United States.”

In the letter jointly authored by Morrisey and attorneys general from Oklahoma and Nebraska, state leaders express their “serious concerns” over a proposal by the two federal agencies to broaden the definition of what should be considered a water of the United States to include any waters within a floodplain, including ditches, farm ponds and often-dry stream beds.

The letter says the proposed rule unlawfully and unconstitutionally asserts federal jurisdiction over local water and land use management, while making it impossible for farmers, developers and homeowners to know whether they can continue certain activities without obtaining an expensive permit.

“This proposed definition would result in millions of additional acres of land and water coming under federal jurisdiction and would create chaos and confusion for private citizens and landowners,” Morrisey said. “Farmers and landowners should not have to worry that the federal government will show up at their door, claiming that they failed to go through a costly federal permit process before using property that had little to no water — such as a small pond, ditch, or often-dry streambed.

"Quite simply: The proposed definition makes no sense and is overbroad.”

Morrisey and other leaders call on the EPA and Army Corps of Engineers to reverse their course on the proposed definition and replace it with a narrow, common-sense alternative that provides farmers, homeowners, and property developers with a clearer understanding of when they must seek permits under the Clean Water Act.

The letter points out that the proposed definition plainly exceeds what the U.S. Supreme Court has described as within the scope of the Clean Water Act.

“The proposed rule is yet another illegal power grab by the Administration, which seeks to add management of local lands and waters to the Administration’s ever-expanding list of federal overreach,” Morrisey said.

Morrisey was joined in the comments by attorneys general of Alabama, Alaska, Georgia, Kansas, Louisiana, Nebraska, North Dakota, Oklahoma, South Carolina, and South Dakota, as well as the governors of Iowa, Kansas, Mississippi, Nebraska, North Carolina, and South Carolina.

In addition to asking the EPA and Army Corps of Engineers to rescind their proposed rule to redefine “waters of the United States,” Morrisey and other state officials urge EPA and Army Corps leaders to visit states to better understand the efforts that local entities are taking to protect land and water.

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