GOP AGs Support Letting States Chart The Course On Waterways

Source: The State AG Report

State: Multistate, West Virginia

Area of Law: Environment & Climate Change, Federal Agencies (FTC, CFPB, FCC)

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• A group of 20 Republican AGs, led by West Virginia AG J.B. McCuskey, submitted a comment letter to the U.S. Environmental Protection Agency and Army Corps of Engineers supporting the agencies' updated definition of "waters of the United States" (WOTUS). The comment letter follows the agencies' proposed rule that narrows the scope of federally regulated waters and reverses prior expansions of federal jurisdiction.
• In the letter, the AGs commend the agencies for revising the definition but urge them to bring the definition into alignment with Supreme Court precedent, including adopting the Sackett v. EPA standard for identifying when wetlands constitute covered waters. They also recommend removing language extending jurisdiction to temporary or ephemeral waters and eliminating "abandonment" provisions related to converted cropland, which they argue could raise Fifth Amendment regulatory takings and due process concerns.
• The letter emphasizes that states have historically regulated their own waters and argues that the Clean Water Act was intended to preserve state authority and prevent federal overreach. The AGs note that they are prepared to work with federal agencies to develop a workable WOTUS definition that protects environmental integrity while respecting constitutional limits.
• We have previously covered Republican AGs efforts to support revisions to the definition of WOTUS, including a comment letter urging the EPA to adopt a definition that recognizes and preserves greater state control over waterways.

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