Utah Attorney General and 10-state Coalition Obtains Victory in Blocking the 2015 WOTUS Rule

FOR IMMEDIATE RELEASE
August 22, 2019

UTAH ATTORNEY GENERAL AND 10-STATE COALITION OBTAINS VICTORY IN BLOCKING THE 2015 WOTUS RULE

SALT LAKE CITY—Utah Attorney General Sean D. Reyes today announced that the U.S. District Court for the Southern District of Georgia granted summary judgment in favor of Utah and 9 other states in their lawsuit challenging the Obama Administration’s 2015 Waters of the United States (WOTUS) Rule and kept an injunction against the Rule in place while federal agencies finalize its replacement.

“The 2015 WOTUS Rule is a clear example for federal overreach that infringed on the States’ traditional role as primary regulators of land and water resources within their borders,” said Attorney General Reyes. “We are proud to have fought for this relief, and we look forward to reforms that will permanently relieve farmers and landowners of the unnecessary burdens that the 2015 WOTUS Rule created.”

In its ruling issued Wednesday afternoon, the court held that the 2015 WOTUS Rule “extend[ed] the Agencies’ delegated authority beyond the limits of the [Clean Water Act]” in a number of ways and also violated multiple procedural requirements for issuing the Rule set out in the federal Administrative Procedure Act. The court explained, “Congress has delegated the important role of protecting the nation’s waters to the Agencies, but in fulfilling that role, the Agencies must comply with the law. Here, they have failed to do just that.” As a result, the court left in place its preliminary injunction that blocks the rule from going into effect in any of the coalition states while the agencies “continue their efforts to change the WOTUS Rule in light of the serious defects identified in this Order.”

Background: Last year, the Environmental Protection Agency and the Department of the Army proposed rules that would rescind and replace the 2015 WOTUS Rule. In April of this year, Utah joined 16 other states in submitting comments supporting that proposal. Read more here.

Led by the Georgia Solicitor General’s Unit, the 10-state coalition in this case also included the following states: Alabama, Florida, Indiana, Kansas, North Carolina, South Carolina, West Virginia, and the Commonwealth of Kentucky.

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NOTES:

Read a copy of the ruling here: https://attorneygeneral.utah.gov/wp-content/uploads/2019/08/Georgia-v.-Wheeler-order-granting-summary-judgment.pdf.

Attorney General Reyes Applauds Repeal of Job-Killing Waters Rule

SALT LAKE CITY June 27, 2017 – Attorney General Sean Reyes joined West Virginia Attorney General Patrick Morrisey, Wisconsin Attorney General Brad Schimel and 19 other state attorneys general to issue the following statement regarding the repeal of U.S. Environmental Protection Agency’s Waters of the United States Rule.

EPA Administrator Scott Pruitt on Tuesday signed a notice to withdraw the Obama-era rule.

“The Attorneys General of the States of West Virginia, Wisconsin, Alabama, Alaska, Arkansas, Georgia, Indiana, Kansas, Louisiana, Michigan, Missouri, Montana, Nevada, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, and Wyoming, and the Commonwealth of Kentucky applaud the action of the Environmental Protection Agency (“EPA”) today in beginning to withdraw the unlawful waters of the United States rule (“WOTUS Rule”).

“We fully support the proposed rule signed by EPA Administrator Pruitt today as a significant step in the direction of withdrawing the unlawful WOTUS Rule.

“The WOTUS Rule asserts sweeping federal authority over usually dry channels, roadside ditches, and isolated streams. The Rule also asserts federal authority over land covered by water only once every one hundred years.

“The rule’s broad assertion of authority unlawfully impinges on the States’ traditional role as the primary regulators of land and water resources. The WOTUS Rule is unlawful under the Clean Water Act, U.S. Supreme Court precedent, and the U.S. Constitution.

“Our States won a nationwide stay blocking enforcement of the rule and allowing the new administration time to work on withdrawing the rule.

“We look forward to EPA’s final action withdrawing the WOTUS Rule and providing relief for our States and their citizens.”

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Attorney General Sean Reyes Joins 20-State Coalition Urging EPA to Respect the States in WOTUS Review

SALT LAKE CITY June 20, 2017 – Attorney General Sean Reyes joined a 20-state coalition in requesting the U.S. Environmental Protection Agency preserve the role of the states in protecting the nation’s water sources.

The coalition filed its letter Monday as part of the EPA’s ongoing review of its Waters of the United States (WOTUS) rule. The attorneys general outlined regulatory overreach present in the existing rule and offered suggestions to better respect the authority of states going forward.

“The WOTUS Rule is unlawful…and significantly impinges upon the States’ traditional role as the primary regulators of land and water resources within their borders,” Attorney General Reyes joined in writing. “We write to suggest how the [EPA and U.S. Army Corps of Engineers] can write a rule that respects Congress’s instruction.”

The letter requests a concrete definition of the term “waters of the United States.” In doing so, it suggests the EPA and the Army Corps of Engineers should preserve the states’ role in protecting water resources, especially those within the border of individual states.

The attorneys general also suggest any final definition should adopt a framework consistent with Supreme Court precedent. That includes that federal agencies can only assert authority over permanent, standing or continuously flowing bodies of water forming geographic features.

The letter expresses that rather than claiming jurisdiction over vast amounts of water and land, EPA and Army Corps of Engineers should consider the active role each state already plays in safeguarding its waterways.

The Obama-era regulation, if implemented, would have taken jurisdiction over natural resources from states and put it in the hands of federal agencies. This included almost any body of water, such as isolated streams, hundred-year floodplains, and roadside ditches.

Many of these states won a nationwide stay that blocked enforcement of the rule and proved crucial in providing time for a new administration to reconsider the rule.

Utah Attorney General Reyes signed the letter with West Virginia, Wisconsin, Alabama, Alaska, Arkansas, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Nevada, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, and Texas.

Read a copy of the letter at http://bit.ly/2tGljKk.

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Utah Attorney General’s Office Welcomes SCOTUS Review of WOTUS Case

SALT LAKE CITY January 14, 2017 – The Utah AGO announced that that the Supreme Court had granted review of the controversial “waters of the United States” (WOTUS) rule case, National Association of Manufacturers v. Department of Defense. Utah is among 27 states who have challenged the Obama EPA’s WOTUS rule expanding federal jurisdiction under the Clean Water Act (CWA). The WOTUS rule would make tributaries and other small waters subject to federal jurisdiction and pollution control laws.

“This rule is a remnant of the Obama Administration’s unprecedented expansion of federal regulation through agencies like the EPA, passed by executive fiat, without consent of Congress and contrary to the will of the people. This rule, if not struck down in its entirety, will cause tremendous damage to our state, our economy, our families and our way of life, which is why we’ve joined this case,” said Utah Attorney General Sean Reyes. “The massive proposed expansion of control by the EPA would bring many roadside ditches, small ponds on family farms, water features on golf courses and stormwater systems under extremely burdensome and unnecessary federal regulation.”

The Supreme Court will examine in National Association of Manufacturers a jurisdictional decision concerning where challenges to the controversial WOTUS rule should be filed. Specifically, the case concerns whether, under the Clean Water Act (CWA), the courts of appeal or federal district courts have jurisdiction to hear a challenge to the lawfulness of the WOTUS rule.

Under current federal law, challenges to some decisions made under the CWA must be filed in federal district courts, while others may be filed in the courts of appeals. In February, the U.S. 6^th Circuit Court of Appeals held it could hear a challenge to the WOTUS rule even though it does not appear that this kind of challenge is available. The Supreme Court will review this decision.

It’s important to note that the Supreme Court will not be hearing a challenge to the substance of the WOTUS rule in this case. At issue before the Court is whether the initial challenge to the substance of the rule should be heard, in the first instance, in an appeals or a district court.

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Utah AG Reyes Applauds SCOTUS Ruling on Waters of the United States

SALT LAKE CITY June 1, 2016 — Utah Attorney General Sean Reyes applauds a decision on the Waters of the United States (WOTUS) from the U.S. Supreme Court on Tuesday. The ruling allows Minnesota peat miners to challenge an Army Corps of Engineers’ determination that their business sits on federal wetland, even though it is more than 120 river miles from the nearest navigable waterway. In a related case, Utah is one of 21 states challenging the EPA’s new and expanded WOTUS rule.

“This week’s U.S. Supreme Court ruling on WOTUS and the Clean Water Act is a victory for Utah citizens,” said Attorney General Reyes. “Everyone benefits when our nation’s highest court restricts the federal government from regulating outside of its authority — and preserves the ability of citizens to challenge overreaching regulatory activity. This decision gives much more protection to individual rights as federal agencies exert increasingly expansive powers.

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