W.Va., Wisconsin AGs lead push asking EPA to respect states in WOTUS review

By Chris Dickerson | Jun 21, 2017

CHARLESTON — West Virginia Attorney General Patrick Morrisey, along with Wisconsin Attorney General Brad D. Schimel, are leading a 20-state coalition in requesting the U.S. Environmental Protection Agency preserve the role of the states in protecting the nation’s water sources. 

The coalition filed its letter June 19 as part of the EPA’s ongoing review of its Waters of the United States rule. The attorneys general outlined regulatory overreach present in the existing rule and offered suggestions to better respect the authority of states going forward.

“The WOTUS Rule is unlawful … and significantly impinges upon the States’ traditional role as the primary regulators of land and water resources within their borders,” the letter states. “We write to suggest how the [EPA and U.S. Army Corps of Engineers] can write a rule that respects Congress’s instruction.”

The letter requests a concrete definition of the term “waters of the United States.” In doing so, it suggests the EPA and the Army Corps of Engineers should preserve the states’ role in protecting water resources, especially those within the border of individual states. 

The attorneys general also suggest any final definition should adopt a framework consistent with Supreme Court precedent. That includes that federal agencies can only assert authority over permanent, standing or continuously flowing bodies of water forming geographic features.

The letter expresses that rather than claiming jurisdiction over vast amounts of water and land, EPA and Army Corps of Engineers should consider the active role each state already plays in safeguarding its waterways.

The Obama-era regulation, if implemented, would have taken jurisdiction over natural resources from states and put it in the hands of federal agencies. This included almost any body of water, such as isolated streams, hundred-year floodplains and roadside ditches.

Morrisey led several states that won a nationwide stay that blocked enforcement of the rule and proved crucial in providing time for a new administration to reconsider the rule.

West Virginia and Wisconsin AGs signed this week’s letter with AGs from Alabama, Alaska, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Nevada, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas and Utah.

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U.S. Environmental Protection Agency (EPA) Virginia Attorney General's Office

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