Missouri AG slams Biden's EPA for 'federal government land grab' over reinstatement of water rule

EXCLUSIVE - Missouri Attorney General Eric Schmitt in a Tuesday letter to the Biden administration condemned the Environmental Protection Agency's "federal government land grab" over its decision to revise the Obama-era definition of "waters of the United States" (WOTUS).

The letter comes after President Biden's EPA and the Army Corps of Engineers last week announced their plans to redefine former President Obama's WOTUS rule, which conservatives have criticized for its confusing definition of navigable waters subject to federal regulations under the Clean Water Act of 1972, leaving room for government overreach.

"Missouri’s farmers and ranchers have been tending to their land for generations. They don’t need another federal government land grab threatening their livelihood and ability to make a living," Schmitt said in a Tuesday statement. "President Obama’s Waters of the United States rule was a disaster for Missouri’s farmers, ranchers, and small businesses."

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Schmitt added that the state "cannot return to that level of unprecedented federal overreach and intrusion."

The EPA's latest move would repeal and replace the Trump-era Navigable Waters Protection Rule, which aimed to clarify the definition of "navigable waters" and subject less land to federal regulation, after former President Trump repealed and replaced WOTUS in 2020.

A 2015 analysis from the Iowa Farm Bureau, for example, found that 97% of Iowa land could be subject to federal regulations under WOTUS.

Schmitt, in his letter to EPA Administrator Michael Regan and Army Corps of Engineers acting Assistant Secretary for the Army of Civil Work Jamie Pinkham, writes that the EPA and Army Corps have "no jurisdiction to impose land-use and permitting requirements on Americans — that authority is vested in the States, not the federal government."

The Missouri attorney general also cites the late Justice Antonin Scalia's 2006 opinion in Rapanos v. United States saying the Clean Water Act has led to an "immense expansion of federal regulation and land use" and that "the statutory ‘waters of the United States’ engulf entire cities and immense arid wastelands."

Schmitt added in his letter that the EPA and Army Corps should follow the Trump administration in abandoning "that lawless course of continuing to expand federal jurisdiction beyond any warrant in the statute's plain text." 

"The Navigable Waters Protection Rule protects water quality, provides certainty and clarity, and keeps the federal government in its lane. We applaud Attorney General Schmitt for putting the Biden Administration on notice that any rewrite pushing the limits of the Clean Water Act will not go unchallenged," Missouri Farm Bureau President Garrett Hawkins said in a Tuesday statement.

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Missouri Cattlemen’s Association President Patty Wood said in a statement compared "going back to the WOTUS rule" to "a slap in the face to farm and ranch families."

"The rule was a pervasive invasion of private property rights where the EPA literally had complete control of every drop of water in the country from a mud puddle to a farm pond," Wood said. "We fully support Attorney General Schmitt’s efforts to push back on the reconsideration of the Navigable Waters Protection Rule."

Proponents of Biden's decision to redefine WOTUS and repeal Trump's Navigable Waters Protection Rule say the move will help protect the environment.

Regan said in a June 9 statement that the Navigable Waters Protection Rule "is leading to significant environmental degradation."

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"We are committed to establishing a durable definition of ‘waters of the United States’ based on Supreme Court precedent and drawing from the lessons learned from the current and previous regulations, as well as input from a wide array of stakeholders, so we can better protect our nation’s waters, foster economic growth, and support thriving communities," he said.

Pinkham said the Trump-era rule "has resulted in a 25 percentage point reduction in determinations of waters that would otherwise be afforded protection."

"Together, the Department of the Army and EPA will develop a rule that is informed by our technical expertise, is straightforward to implement by our agencies and our state and Tribal co-regulators, and is shaped by the lived experience of local communities," he said.