In an attempt to rewrite the definition of waters of the United States, two federal agencies are asking for input from governors in all 50 states and five territories, according to a news release from the U.S. Environmental Protection Agency on Tuesday.
One of the issues new EPA Administrator Scott Pruitt stressed in the congressional hearings leading up to his confirmation was a need to restore what he called “cooperative federalism,” where the states and federal agencies work together on developing regulations.
In a letter sent on Tuesday, the EPA and the U.S. Army Corps of Engineers asked for input from governors on a new definition or protected waters that is in line with U.S. Supreme Court Justice Antonin Scalia’s opinion in the 2006 Rapanos v. United States case.
In that case, Scalia wrote that federal oversight should extend to “relatively permanent” waters and wetlands with a “continuous surface connection” to large rivers and streams.
“EPA is restoring states’ important role in the regulation of water,” Pruitt said in a statement on Tuesday. “Like President Trump, I believe that we need to work with our state governments to understand what they think is the best way to protect their waters, and what actions they are already taking to do so. We want to return to a regulatory partnership, rather than regulate by executive fiat.”
Douglas Lamont, a senior official performing the duties of the assistant secretary of the Army for Civil Works, said in a statement the Corps of Engineers will continue to “make the implementation of the Clean Water Act Section 404 regulatory program as transparent as possible for the regulated public.”
In the letter, the two agency heads outline the steps being taken to rewrite the rule and reinforce the need for partnerships with the states.
“Consulting with state and local government officials, or their representative national organizations, is a priority for us and President Trump,” the letter said.
“We believe this is an important step in the process prior to proposing regulations that may have implications on federalism as defined by the agencies’ policy for implementing the order (executive order on regulations). We hope to keep the states at the forefront of our mission and your input during the federalism process will enable us to do that effectively.”
The Trump administration signed an executive order to begin rolling back the waters of the United States, or WOTUS, rule currently caught up in federal litigation.
American Farm Bureau Federation President Zippy Duvall said in a statement on Tuesday that the EPA’s decision to seek input from the governors is an important step.
“EPA Administrator Pruitt’s decision to consult with the states before revising the waters of the United States rule marks a sharp break with the recent past,” Duvall said. “His letter to the 50 state governors requesting their comments on what a new rule should do recognizes the checks and balances that were written into the Clean Water Act in the first place.
“This is an important, first step towards the restoration of law in environmental regulation. A distant and unaccountable Washington bureaucracy has too often punished farmers and ranchers for alleged infringements that have no basis in law. The EPA and Army Corps have ignored requirements that they consult state officials in their work. Administrator Pruitt calls this new relationship a partnership, rather than a fiat. We agree that this is the right way to proceed: Regulation must be done with an open door and open mind. We look forward to working with the states, the EPA and Army Corps of Engineers to set things right once more,” Duvall said in the statement.
At the end of April, retired Major General John Peabody, deputy commanding general for Civil and Emergency Operations from October 2013 through August 2015, said in written testimony to the U.S. Senate Environment and Public Works Committee that the Corps of Engineers played virtually no role in drafting the WOTUS rule.
Peabody was one of five witnesses called to testify before the EPW committee as part of a review of the scientific and legal basis for the WOTUS rule.