AUSTIN – The U.S. Environmental Protection Agency and U.S. Army are moving to rescind the 2015 Waters of the U.S. (WOTUS) following a 20-state coalition, including Texas, calling for the preservation of the states' role in protecting the nation’s water sources.

"We are taking significant action to return power to the states and provide regulatory certainty to our nation's farmers and businesses," EPA Administrator Scott Pruitt said in a press release issued Tuesday, June 27. "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."

Allen Railroad Dam in Allen, Texas
Allen Railroad Dam in Allen, Texas

That announcement followed on the heels of a June 19 letter sent by a 20-state coalition of attorneys general, including Texas Attorney General Ken Paxton, calling on the EPA to respect the role of states in WOTUS reviews.

"The WOTUS rules are a blatant power grab by the EPA," Paxton said in a press release the following day. "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."

Instead of claiming jurisdiction over the nation's water and land, the coalition suggested the EPA and Army Corps of Engineers consider the active role states already play in safeguarding waterways, Paxton said in his press release.

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

In addition to Texas, attorneys general from West Virginia, Wisconsin, Alabama, Alaska, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Nevada, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota and Utah also signed the letter.

At issue is the EPA's action in June 2015 finalizing a broader definition of the WOTUS rule. Later that same summer, the agency and U.S. Army Corps of Engineers began enforcing the broader rule, extending the federal agency’s authority to all bodies of water, regardless of size or frequency.

That broadened rule did not go unchallenged. In October of the same year, the U.S. 6th Circuit Court of Appeals blocked nationwide implementation of the WOTUS rule. The following February, the same court ruled in a split decision that it has jurisdiction to hear merits of challenge to the WOTUS rule.

The U.S. Supreme Court weighed in May 31, 2016, in a rare unanimous decision, in U.S. Army Corps of Engineers v. Hawkes Co, that landowners have the right to seek judicial review of federal declarations that their property falls under the WOTUS rule.

This past February, President Donald Trump issued an executive order Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule. The executive order maintained that it is in the national interest to ensure navigable waters in the country are free from pollution while promoting economic growth, minimizing regulatory uncertainty and preserving the Constitutional role of Congress and the States under the Constitution. 

"Therefore, this action, when final, will not change current practice with respect to how the definition applies," the EPA's press release said. "The agencies have also begun deliberations and outreach on the second step rule making involving a re-evaluation and revision of the definition of 'waters of the United States' in accordance with the executive order."

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