States applaud EPA's decision to repeal Waters of the United States rule

Texas Attorney General Ken Paxton today joined West Virginia Attorney General Patrick Morrisey, Wisconsin Attorney General Brad Schimel and 19 other state attorneys general in supporting the repeal of the U.S. Environmental Protection Agency’s (EPA) Waters of the United States (WOTUS) rule. EPA Administrator Scott Pruitt signed a notice to withdraw the Obama-era rule.

The WOTUS rule asserted sweeping federal authority over all waters in the U.S., including not only dry channels, ditches, and isolated streams, but also land covered by water only once every 100 years.

“This rule directly infringed on the states’ ability to regulate their own national resources and posed a burden to Texas property owners whose land would be subject to new EPA regulations,” Attorney General Paxton said. “I applaud Administrator Pruitt for recognizing that the Obama-era EPA blatantly exceeded statutory authority, and for promptly repealing this unlawful rule.”


In October 2015, the 6th U.S. Circuit Court of Appeals sided with a lawsuit filed by Attorney General Paxton and issued a nationwide stay against the WOTUS rule. Earlier this month, he joined a 20-state coalition in a letter urging the EPA to respect states’ rights in its ongoing review of the rule.

Along with Texas, West Virginia and Wisconsin, the states in support of the repeal of the Waters of the United States Rule are Alabama, Alaska, Arkansas, Georgia, Indiana, Kansas, Louisiana, Michigan, Missouri, Montana, Nevada, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Wyoming, and the Commonwealth of Kentucky.

The EPA, Department of Army, and Army Corps of Engineers are proposing a rule to rescind the Clean Water Rule and re-codify the regulatory text that existed prior to 2015 defining "waters of the United States" or WOTUS. This action would, when finalized, provide certainty in the interim, pending a second rulemaking in which the agencies will engage in a substantive re-evaluation of the definition of "waters of the United States." The proposed rule would be implemented in accordance with Supreme Court decisions, agency guidance, and longstanding practice.

"We are taking significant action to return power to the states and provide regulatory certainty to our nation's farmers and businesses," said Administrator Scott Pruitt. "This is the first step in the two-step process to redefine 'waters of the U.S.' and we are committed to moving through this re-evaluation to quickly provide regulatory certainty, in a way that is thoughtful, transparent and collaborative with other agencies and the public."

This proposed rule follows the February 28, 2017, Presidential Executive Order on "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule." The February Order states that it is in the national interest to ensure that the Nation's navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of Congress and the States under the Constitution. To meet these objectives, the agencies intend to follow an expeditious, two-step process that will provide certainty across the country.

The proposed rule would recodify the identical regulatory text that was in place prior to the 2015 Clean Water Rule and that is currently in place as a result of the U.S. Court of Appeals for the Sixth Circuit's stay of the 2015 rule. Therefore, this action, when final, will not change current practice with respect to how the definition applies.

The agencies have also begun deliberations and outreach on the second step rulemaking involving a re-evaluation and revision of the definition of "waters of the United States" in accordance with the Executive Order.

"The Army, together with the Corps of Engineers, is committed to working closely with and supporting the EPA on these rulemakings. As we go through the rulemaking process, we will continue to make the implementation of the Clean Water Act Section 404 regulatory program as transparent as possible for the regulated public, " said Mr. Douglas Lamont, senior official performing the duties of the Assistant Secretary of the Army for Civil Works.

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