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Attorney General Marty Jackley

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Sixth Circuit Court of Appeals Rules Jurisdiction in WOTUS Litigation


FOR IMMEDIATE RELEASE :      Tuesday, February 23, 2016
CONTACT:  Sara Rabern (605)773-3215   

Sixth Circuit Court of Appeals Rules Jurisdiction in WOTUS Litigation

PIERRE, S.D. -   Attorney General Marty Jackley announced today that the Sixth Circuit Court of Appeals has ruled that it has jurisdiction over the Waters of the United States (WOTUS) litigation and denied the States’ motions to dismiss.  In so holding, the Sixth Circuit found that Congress authorized direct review by the circuit courts of this type of Environmental Protection Agency action.  The ruling did not address the merits of the litigation but only determined that the Sixth Circuit could entertain the action.  Litigation will continue in the United States District Court, District of North Dakota and the Sixth Circuit Court of Appeals. Today’s ruling has no effect on the stay of implementation of the WOTUS Rule nationwide. 
"The EPA is overstepping its Congressional authority and seizing rights specifically reserved to the States," Jackley said.  "The EPA is creating uncertainty for our agriculture and business community that needs to have fairness and a degree of common sense in federal regulation."

South Dakota joined 12 other states on August 11, 2015, challenging the Environmental Protection Agency and the U.S. Army Corp of Engineers over the EPA’s new rule defining “Waters of the United States” under the Clean Water Act. 

The States actively sought postponement of the impending implementation of the WOTUS Rule while the courts could fully address the States’ concerns.  On June 29, 2015, thirteen states filed in federal district court in North Dakota asking the court to vacate the new rule and bar the EPA and the USACE from enforcing the new definition.  Out of an abundance of caution, a petition for review was filed before the Eighth Circuit Court of Appeals pursuant to §1369(b) of the Clean Water Act (CWA).  Several other states have filed in their respective regions.  These other states also filed petitions of review before their respective courts of appeal in the Second, Fifth, Sixth, Ninth, Tenth, Eleventh, and the District of Columbia.  The States contended the new definition of WOTUS violated provisions of the CWA, the National Environmental Policy Act (NEPA), and the United States Constitution.  On July 29, 2015, the Multidistrict Litigation Panel issued an order consolidating the petitions for review pending in the circuit courts of appeal to be reviewed by the Sixth Circuit Court of Appeals.  Then on July 30, 2015, 31 states requested that the EPA and USACE delay the effective date of the new Rule defining “Waters of the United States” under the CWA.  On October 9, 2015, the Sixth Circuit granted that request prohibited the implementation of the WOTUS Rule until the conclusion of the litigation.