AG Derek Schmidt to federal court: Do not block EPA’s rollback of Obama-era WOTUS rule

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TOPEKA – (June 3, 2020) – Kansas farmers, ranchers and energy producers should be protected against an attempt to reinstitute an Obama-era water regulation that extended the authority of the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers far beyond what Congress intended and the Constitution permits, Attorney General Derek Schmidt told a federal district court this week.

Schmidt, along with 22 other state attorneys general, late Monday filed a motion to intervene in a lawsuit filed by California against the EPA in the U.S. District Court for the Northern District of California seeking a nationwide preliminary injunction to block enforcement of its Navigable Waters Protection Rule.

If successful, California’s injunction would halt the rule implemented last year by the Trump administration. That would effectively reinstate the 2015 Waters of the U.S. (WOTUS) rule it replaced, although Kansas would still have in place a separate injunction preventing enforcement of the 2015 WOTUS rule in Kansas. That Obama-era rule sought to vastly expand the EPA’s regulatory authority under the federal Clean Water Act to include ditches, ponds, and wetlands in order to more aggressively regulate private land use. Kansas and other states previously challenged the legality of the sweeping Obama-era rule, and federal courts blocked its enforcement. The Navigable Waters Protection Rule sought to address the concerns raised by Kansas and other states in their successful legal challenge.

“California is making the extraordinary argument in this case that the EPA should be forced to exert far more regulatory control over sovereign lands and waters than it wants to or believes it is able to under the Constitution and federal law,” Schmidt said. “The Trump administration should instead be allowed to proceed with its desired approach that appropriately protects water quality while respecting those legal boundaries and gives greater certainty to Kansas farmers, ranchers and energy producers.”

Schmidt and the other attorneys general argue in the motion their states have significant interests in protecting their ability to administer waters within their borders, and that those interests will be unique and separate from those argued by the EPA.

A copy of the motion to intervene is available at https://bit.ly/2U3xaSc. A copy of the accompanying proposed opposition to a preliminary injunction is available at https://bit.ly/2BwrpWP.