Missouri Attorney General opposes reinstatement of overreaching WOTUS rule in Letter to EPA and Army Corps of Engineers

WOTUS or Waters of the United States

Missouri Attorney General Eric Schmitt sent a letter to the Environmental Protection Agency and the United States Army Corps of Engineers, opposing their recent move to reconsider the more limited Navigable Waters Protection Rule, a President Trump-era rule that reversed the 2015 Obama-era Waters of the United States rule.

EPA Administrator Michael Regan and the Army Corps of Engineers released a statement on Wednesday, June 9, 2021, that announced their intent to revise the Navigable Waters Protection Rule.

“Missouri’s farmers and ranchers have been tending to their land for generations. They don’t need another federal government land grab threatening their livelihood and ability to make a living,” said Attorney General Schmitt. “President Obama’s Waters of the United States rule was a disaster for Missouri’s farmers, ranchers, and small businesses – we cannot return to that level of unprecedented federal overreach and intrusion.”

“The Navigable Waters Protection Rule protects water quality, provides certainty and clarity, and keeps the federal government in its lane. We applaud Attorney General Schmitt for putting the Biden Administration on notice that any rewrite pushing the limits of the Clean Water Act will not go unchallenged,” said Missouri Farm Bureau President Garrett Hawkins.

“Going back to the WOTUS rule is a slap in the face to farm and ranch families. The rule was a pervasive invasion of private property rights where the EPA literally had complete control of every drop of water in the country from a mud puddle to a farm pond,” said Missouri Cattlemen’s Association President Patty Wood. “We fully support Attorney General Schmitt’s efforts to push back on the reconsideration of the Navigable Waters Protection Rule.”

In the letter, sent to EPA Administrator Michael Regan and Acting Assistant Secretary of the Army for Civil Works Jaime Pinkham, Attorney General Schmitt opens with, “In response to your recent announcement that EPA and the Army Corps of Engineers intend to revisit the Navigable Waters Protection Rule, I write to remind you of the statutory limits on your authority to engage in nationwide land-use regulation under the aegis of regulating ‘waters of the United States.’ I urge you to reject the fundamentally lawless approach of treating vast tracts of land in the interior of the United States as ‘waters.’”

The letter argues that the Clean Water Act gives the EPA and the Army Corps limited authority, specifically to regulate “navigable waters,” which are defined as the “waters of the United States.” As the letter notes, “Beyond this specific, limited authority, EPA and the Army Corps have no jurisdiction to impose land-use and permitting requirements on Americans – that authority is vested in the States, not the federal government.”

Additionally, beyond the restrictions mentioned above, the letter states that the definition of “waters of the United States” has plain statutory meaning, covering “permanent ‘geographical features’ or bodies of water—not any land where water sometimes flows during rain or floods, such as dry channels in the desert.”

Nevertheless, the EPA has used the Clean Water Act to expand its reach and regulatory scope in decades of regulatory “mission creep.” Quoting Scalia’s opinion in Rapanos v. United States, the letter notes, “In the last three decades, the Corps and the Environmental Protection Agency (EPA) have interpreted their jurisdiction over ‘the waters of the United States to cover 270-to-300 million acres of swampy lands in the United States—including half of Alaska and an area the size of California in the lower 48 States… On this view, the federally regulated ‘waters of the United States’ include 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.”

The American Farm Bureau praised President Trump’s Navigable Waters Protection Rule, stating at the time, “Farmers and ranchers care about clean water and preserving the land, which are essential to producing healthy food and fiber and ensuring future generations can do the same. That’s why we support the Navigable Waters Protection Rule.”

Opposing the agencies’ threat to return to another expansive regime like the Obama-era “Waters of the United States” rule, the letter continues, “Unfortunately, your recent announcement provides no assurance that your agencies have returned to the statutory roots of their authority. On the contrary, your statement contains troubling signals that you intend to return to your former, ill-advised approach of attempting to push the limits of your authority to their constitutional limits—and beyond.”

The full letter can be found at this link.

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