Having grown up near the banks of the White River in the Ozark foothills, I fully appreciate the clean water that helps make us the Natural State.
Like all Arkansans, I want to protect our clean water for future generations, but there is currently a push from aggressive Washington, D.C., bureaucrats to control all water in Arkansas, even roadside ditches, because they think they know how to protect our clean water better than we do.
On June 29, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers published the final Waters of the United States rule to be implemented on August 28. The new rule, at over 370 pages, seeks to expand the definition of the Clean Water Act's "navigable waters" to include small tributaries and other bodies of water close to lakes and rivers, but instead of clarifying an already confusing federal law, it only adds greater uncertainty.
The EPA and the Corps chose to blatantly ignore that Congress recognized that the states should retain their authority over state land and water resources. However, I firmly believe that Arkansas, not Washington, knows how to ensure protection of our clean waters without creating severe economic harm for farmers, businesses and towns, and more importantly, without destroying the property rights of landowners.
With the new rule, I believe the EPA has unlawfully exceeded the limitations that Congress intentionally placed on the federal agencies under the Clean Water Act.
In response, I have partnered with 12 other states and filed a lawsuit to challenge the legality of the Waters of the U.S. rule. The EPA and the Corps have overstepped the limits of the law by attempting to expand the federal government's authority over small streams, tributaries and even ditches within our state. It is my duty as attorney general to protect the interests of the many farmers, landowners and small-business owners across Arkansas by preventing implementation of this harmful rule.
I firmly believe that Arkansas is in the best position to safeguard its clean-water resources so the needs of the state's agricultural and business communities are protected. Across the country, the states have shown a superior ability to communicate with local businesses on the meaning of environmental rules and, even more importantly, how those rules will be enforced.
This is not the first time the EPA or the Corps have attempted to reach beyond their jurisdiction. The U.S. Supreme Court has already had to step in twice when the agencies have attempted to exceed their legal authority through unlawful enforcement of the Clean Water Act. In 2001 and 2006, the Supreme Court ruled against the Corps and its interpretation of the Clean Water Act. But now the agencies are attempting to take advantage of the court's ambiguity in those decisions by expanding the court's narrow rulings to meet their policy goals.
While on the surface the new rule works to make it more clear which bodies of water are included under the definition, it brings potentially dangerous consequences for the agricultural community and other landowners. The final rule includes tributaries that show "physical features of flowing water," even if they are not running year-round, and ditches that could potentially "carry pollution downstream." There is no doubt that the rule defines what bodies of water are included because it gives the agencies authority over almost every body of water.
This rule creates a high probability that a landowner or farmer will be subject to new, major regulations, burdensome permitting and hefty fines by the EPA and the Corps. Noncompliance could result in fines of up to $37,500 per day and criminal charges.
The states' victory in the recent Supreme Court decision in Michigan v. EPA helps to serve as a reminder to the EPA that it is not above the law and of the consequences for audacious disregard of its limitations. As the court emphasized in this case the need for serious consideration of costs in the regulatory process, I am concerned that the Waters of the U.S. rule will not provide greater protection for Arkansas' water resources and will impose greater costs on Arkansans through unnecessary and overly bureaucratic regulations.
Rest assured, I will fight to protect Arkansas from Washington bureaucrats seeking to advance policy goals without congressional authority, and I look forward to joining you in enjoying Arkansas' clean water for generations to come.
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Leslie Rutledge is the 56th attorney general of Arkansas.
Editorial on 08/06/2015