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28 state AGs want WOTUS implementation delayed

Nearly 30 states that filed lawsuits against EPA and the Army Corps of Engineers over a new rule defining federal juristdiction under the Clean Water Act are requesting a delay in implementation to allow for judicial review of the challenges.
Carol Ryan Dumas

Capital Press

Published on July 31, 2015 10:13AM

Last changed on July 31, 2015 12:47PM


Attorneys General from 28 states have requested EPA and the Army Corps of Engineers delay implementation of a controversial rule they say unlawfully expands the agencies’ jurisdiction under the Clean Water Act.

The AGs on July 28 sent a letter to EPA Administrator Gina McCarthy and Assistant Secretary of the Army, Civil Works, Jo Ellen Darcy asking them to immediately extend the effective date, Aug. 28, of the new rule defining waters of the U.S. (WOTUS) by at least nine months to allow for appropriate judicial review.

The 28 states, including Idaho, immediately challenged the rule in five separate lawsuits filed upon or soon after its June 29 appearance in the Federal Register.

“ … it will necessarily take some time for the courts to resolve the merits of these various cases with their different claims,” the AGs stated in the letter.

“Even under a fairly aggressive schedule, the pending challenges will likely not be fully briefed and argued for at least nine months,” they stated.

Absent a court-granted preliminary injunction, the agencies’ intended implementation will cause immediate harm to states, their regulatory programs and local industries by increased permitting and compliance requirements under the agencies’ “sweeping new asserted jurisdiction,” the AGs said.

The agencies’ increased jurisdiction comes at the direct expense of states, which previously had exclusive jurisdiction over state waters. It exceeds the statutory authority of Congress under the Commerce Clause and infringes upon state’s rights under the 10th Amendment of the Constitution, they stated.

In addition to injuring states’ sovereign capacity, increased burden will be placed on states as they develop and build infrastructure projects, increasing the cost and complexity of obtaining necessary permits, the AGs stated.

The new regulation will also have a significant impact on agriculture, homebuilding, oil and gas, and mining as those industries try to navigate between established state regulatory programs and new burdensome and conflicting federal requirements, the officials stated.

“Given the gravity of the Constitutional issues implicated by the states’ claims and to avoid these hardships, the courts should be granted the opportunity to resolve the pending challenges to the agencies’ new WOTUS Rule,” the AGs stated.

In a written statement in response to Capital Press’ request for comment, EPA stated (in part):

“While we can’t comment on the lawsuit, it’s important to remember that EPA and the U.S. Army Corps of Engineers finalized the Clean Water Rule because protection for many of the nation’s streams and wetlands had been confusing, complex, and time-consuming as the result of Supreme Court decisions in 2001 and 2006.

“… the Agencies developed a rule that ensures that waters protected under the Clean Water Act are more precisely defined, more predictably determined, and easier for businesses and industry to understand.”

Capital Press has also contacted the Idaho Attorney General’s office and the North Dakota AG’s office, which has led states’ efforts in the WOTUS challenge.

That office said it had no comment beyond a press release issued on Thursday in which North Dakota Attorney General Wayne Stenehjem stated: “A federal rule of this scope and significance needs thorough judicial review before costly and disruptive burdens are imposed on North Dakotans. The rule is unnecessary, unlawful, and will do nothing to increase water quality in our state.”

Six other lawsuit challenging the WOTUS rule represent agriculture, private property owners, businesses, chambers of commerce, energy companies, trade associations, manufacturers, home builders, forest owners, road and transportation builders, real estate investors, and legal foundations.

On July 21, a district judge in Georgia ordered EPA and the Corps to respond to a motion by the state of Georgia, et al, for preliminary injunction by July 31 and set a court date for Aug. 12.

Also on July 21, the federal government filed a motion to temporarily stay all proceeding and consolidate the 11 district court challenges in a single district court.



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