TOPEKA – (August 26, 2015) – Kansas Attorney General Derek Schmidt has joined 27 other states in asking the Environmental Protection Agency to withdraw the final regulation regarding the “Clean Water Rule: Definition of Waters of the United States.”
The regulations, known generally as the “Waters of the U.S.” Rule (WOTUS Rule), would extend the EPA and Army Corps of Engineers’ regulatory reach into small waterways, ditches and ponds on Kansas farms, ranches and land developments. This new rule would have significant consequences for homeowners, farmers and other entities by forcing them to navigate a complex federal bureaucracy and obtain costly permits in order to perform everyday tasks such as digging ditches, building fences or spraying fertilizers.
In last week’s letter to the EPA and U.S. Army Corps of Engineers, the attorneys general urge the immediate withdrawal of the WOTUS Rule citing new information released recently by the U.S. House of Representatives Committee on Oversight and Reform that outlines concerns about the Rule voiced by the Army Corps of Engineers written after the EPA submitted the final draft of the WOTUS Rule to the Office of Management and Budget for review. Issues raised by the Corps include serious questions regarding the legality of the final rule and the process by which it was adopted. In the documents, senior Corps staff warn that the final rule “depart[s] significantly from the version provided for public comment,” “contradicts long-standing and well-established legal principles,” and is “a textbook example of rulemaking that cannot withstand judicial review.”
Schmidt said he will continue to protect Kansas’ interests against this sweeping claim of power by a federal regulatory agency.
“The Corps documents raise many of the same legal and procedural deficiencies that our states have raised in numerous lawsuits challenging the final WOTUS Rule,” Schmidt said. “In addition to ignoring the substantial concerns of Kansas and other states, it appears the EPA has completely disregarded the concerns of its sister agency and co-author of the rule. I continue to have serious concerns about the line being crossed by the Obama Administration’s habitual executive overreach and callous disregard for state’s sovereign authority with regards to WOTUS and many other issues.”
In July, Schmidt joined 28 other state attorneys general in asking the EPA to delay the August 28 implementation of the final regulation pending judicial review. A response or acknowledgment of the letter was never received. The more recent letter came on the heels of a lawsuit in which Kansas asks a federal court to overturn new water regulations and asks a federal judge to declare the rule illegal and issue an injunction to prevent the agencies from enforcing it. A ruling on that injunction is possible this week. The lawsuit also asks the judge to order the agencies to draft a new rule that complies with the law and honors state authority. A total of 31 states are now challenging the rule in five different lawsuits, all of which are still pending.
A copy of the letter is available at http://1.usa.gov/1MU7X43.