PINEDALE — In a move to support the Navigable Waters Protection Rule and allow Wyoming to be its own “prime caretaker” of water, the State Attorney General’s Office joined 22 other states to intervene as amicus curiae or friends of the court of last week.
The Navigable Waters Protection Rule was enacted by the Trump administration to loosen what conservationists saw as needed protections in the Obama administration’s 2015 Waters of the United States, known as “WOTUS.”
The WOTUS rule was challenged by many states in different courts and upheld in others.
Gov. Mark Gordon made the announcement Friday, June 5.
The states signed up to intervene are Georgia, West Virginia, Alabama, Alaska, Arkansas, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah and now Wyoming.
The 23 states hope to intervene in a California lawsuit challenging Trump’s rule led by New York and California.
That case is filed in U.S. District Court for the Northern District of California and it seeks a preliminary injunction against the new Trump rule.
“It is vital that Wyoming stand up for its right to be the prime caretaker and regulator of waters that are strictly within our state,” Gordon said in a statement. “We know how to protect our waters far better than the federal government. Wyoming is home to countless sources of water that never reach a navigable waterway, many of which would come under federal control should WOTUS be reinstated.”
Wyoming wants to “ensure the court considers Wyoming’s interests and that of its coalition partners,” according to Michael Pearlman of the Governor’s Office. “The rule gives greater certainty to landowners by providing predictable and reasonable lines between waters subject to federal and state regulation under the Clean Water Act.”
The states seeking to intervene have prepared a brief opposing the other states and cities’ motion for a preliminary injunction to stall the Trump rule in support of WOTUS.
The proposed opposition states: “Moreover, the scope of the term “waters of the United States” does not just set federal jurisdiction over waters within the states: it sets the scope of the states’ responsibilities under the Clean Water Act. That Act was built on a cooperative federalism framework. Congress enacted the CWA with a policy to ‘recognize, preserve, and protect the primary responsibilities and rights of states to prevent, reduce and eliminate pollution’ and to ‘plan the development and use ... of land and water resources.’
Many of these states challenged the 2015 Rule “because its expansive assertion of jurisdiction threatened to saddle them and their citizens with substantial costs and infringed their traditional sovereign authority over their lands and waters.”
However, the 2020 Rule “preserves the longstanding role of the states as primary regulators of intrastate lands and waters by allowing for federal jurisdiction over only relatively permanent bodies of water, and leaving within state control those areas that benefit the most.”
“The plaintiffs in this case, a group of states and cities, seek a universal preliminary injunction to prevent the agencies from implementing that rule anywhere in the country – not because the agencies tried to seize too much federal power over the states’ sovereign lands and waters, but because the plaintiffs believe they did not go far enough. As a coalition comprised of almost half the states in the country, we oppose the plaintiffs’ request to force federal agencies to exert regulatory control over more of our sovereign lands and waters.”
It continues, “The plaintiffs (WOTUS supporters) have not demonstrated the other factors required for a preliminary injunction. They have not shown that irreparable harm is likely to result from implementing the 2020 Rule, especially not while this action is pending. The 2020 Rule is a withdrawal of federal jurisdiction, and the plaintiffs fail to connect that deregulatory action to concrete harms.
“Even if the plaintiffs could show some imminent and concrete harm, they certainly have not shown that a universal injunction is appropriate. Assuming such relief is within the power of a federal court to grant, injunctive relief must sweep no further than what is necessary to provide complete relief to the plaintiffs.”
The next hearing in the California lawsuit is on July 9 at 2:30 MST in the San Francisco Courthouse with Judge Richard Seeborg presiding.