PIERRE, S.D –   Attorney General Marty Jackley announced today that the he and other State Attorneys General have filed comments to the U.S. Army Corps of Engineers proposal to modify Nationwide Permits (NWP)  to incorporate provisions of the WOTUS rule.   

South Dakota previously joined 12 other states on August 11, 2015, challenging the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (CORPS).
 
“I remain concerned that both the EPA and the CORPS are exceeding their authority granted by Congress. The federal courts have agreed with the Attorneys General and have enjoined the EPA and the CORPS from enforcing a Rule that infringes upon our State authority. Now the CORPS is continuing to create uncertainty for our agriculture and business community that needs to have fairness and a degree of common sense in federal regulation,” stated Jackley.

The Attorneys General argue “It is both premature and unwise to change the NWP to incorporate new regulations that are currently stayed and that may well never be applied.”

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 COPRS from enforcing the new definition.   Several other states have filed in their respective regions. The states contended the new definition of WOTUS violated provisions of the Clean Water Act (CWA), the National Environmental Policy Act (NEPA), and the United States Constitution. Then on July 30, 2015, 31 states requested that the EPA and CORPS delay the effective date of the new Rule defining “Waters of the United States” under the CWA.   

On August 27, 2015, the Federal Court issued a preliminary injunction to delay the Rules implementation until the Court has an opportunity to fully review the administrative record. The Court found that it was likely that the EPA violated its grant of authority when it promulgated the Rule and likely failed to comply with the requirements in the Administrative Procedures Act. Finally, the Court found the risk of harm to the States is great.