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CONCURRENT RESOLUTION ON WATERS OF THE UNITED

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STATES

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2016 GENERAL SESSION

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STATE OF UTAH

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Chief Sponsor: Michael E. Noel

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Senate Sponsor: David P. Hinkins

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8     LONG TITLE
9     General Description:
10          This concurrent resolution of the Legislature and the Governor expresses support to
11     Attorney General Sean Reyes in seeking to vacate a federal rule defining "waters of the
12     United States."
13     Highlighted Provisions:
14          This resolution:
15          ▸     expresses disapproval of the expansion of the term "waters of the United States" to
16     include ephemeral drainages, dry washes, gullies, coulees, and arroyos, which only
17     move water after rain; and
18          ▸     expresses support for Attorney General Sean Reyes in seeking to vacate this
19     expansive rule.
20     Special Clauses:
21          None
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23     Be it resolved by the Legislature of the state of Utah, the Governor concurring therein:
24          WHEREAS, the scope of federal authority to regulate "navigable waters" under the
25     Clean Water Act is established by the regulatory definition of the term "waters of the United
26     States";
27          WHEREAS, on June 29, 2015, the Environmental Protection Agency and the United
28     States Army Corps of Engineers (agencies) finalized a new regulation expanding the scope of
29     this definition;

30          WHEREAS, the rule purports to expand federal jurisdiction over a broad range of dry
31     land and water features found within the state of Utah, such as ephemeral drainages, dry
32     washes, gullies, coulees, and arroyos, which only move water after rain;
33          WHEREAS, the definition of "tributary" is one of the most expansive and problematic
34     terms in the proposed rule;
35          WHEREAS, a tributary is commonly understood as a "stream" or "river" flowing into a
36     larger stream or river, yet the new rule would include ephemeral drainages in the definition of
37     tributary, even though they channel water only after heavy storms and are dry most of the time;
38          WHEREAS, the rule violates previous United States Supreme Court decisions Solid
39     Waste Agency of Northern Cook County v. United States Army Corps of Engineers
40     (SWANCC), 531 U.S. 159 (2001) and Rapanos v. United States (Rapanos), 547 U.S. 715, 725
41     (2006), which interprets the scope of federal authority under the Clean Water Act to be more
42     limited than the new rule;
43          WHEREAS, the United States Supreme Court clarified and set limitations in defining
44     "waters of the United States" under the Clean Water Act in the Rapanos decision, stating,
45     "waters of the United States" includes only those "relatively permanent, standing or
46     continuously flowing bodies of water 'forming geographic features' that are described in
47     ordinary parlance as 'streams, . . . oceans, rivers, [and] lakes'";
48          WHEREAS, the United States Supreme Court defined the relationship between the
49     federal regulatory agencies and the states finding, "Where an administrative interpretation of a
50     statute invokes the outer limits of Congress's power, we expect a clear indication that Congress
51     intended that result. This requirement stems from our prudential desire not to needlessly reach
52     constitutional issues and our assumption that Congress does not casually authorize
53     administrative agencies to interpret a statute to push the limit of congressional authority. This
54     concern is heightened where the administrative interpretation alters the federal-state framework
55     by permitting federal encroachment upon traditional state power. Unless Congress conveys its
56     purpose clearly, it is not deemed to have significantly changed the federal-state balance";
57          WHEREAS, according to the Army Corps of Engineers in certain memoranda, the rule

58     is "inconsistent with SWANCC and Rapanos. This assertion of Clean Water Act jurisdiction
59     over millions of acres of isolated waters . . . undermines the legal and scientific credibility of
60     the rule";
61          WHEREAS, the Army Corps of Engineers said, "the draft final rule continues to depart
62     significantly from the version provided for public comments, and that the Corps
63     recommendations relation to our serious concerns have gone unaddressed. Specifically, the
64     current draft final rule contradicts long-standing and well-established legal principles
65     undergirding Clean Water Act 404 regulations and regulatory practices, especially the decisive
66     Rapanos Supreme Court decision. The rule's contradictions with legal principles generate
67     multiple legal and technical consequences that in the view of the Corps would be fatal to the
68     rule in this current form";
69          WHEREAS, the Corps further states, "The preamble to the proposed rule and the draft
70     preamble to the draft rule state that the rulemaking has been a joint effort of the EPA and the
71     Corps, and that both agencies have jointly made significant findings, reached important
72     conclusions, and stand behind the rule. These statements are not accurate";
73          WHEREAS, the Corps charges that the EPA "selectively applied out of context, and
74     mixes terminology and disparate data set. In the Corp's judgment, these documents contain
75     numerous inappropriate assumptions with no connection to the data provided, misapplied data,
76     analytical deficiencies, and logical inconsistencies";
77          WHEREAS, the rule exceeds the powers granted to the agencies by the United States
78     Constitution, Article 1, Section 8, to regulate channels of commerce within the state of Utah;
79          WHEREAS, the rule usurps the rights and powers reserved and granted by the Tenth
80     Amendment to the United States Constitution to the state of Utah to regulate intrastate land use
81     and water resources;
82          WHEREAS, the rule would regulate many irrigation ditches key to Utah agriculture as
83     tributaries, imposing restrictions beyond those required by the state engineer and interfering
84     with water rights;
85          WHEREAS, the rule regulates most wetlands, lakes, seasonally ponded areas, and

86     ponds, including those constructed for stock watering and irrigation;
87          WHEREAS, to avoid the risk of liability from enforcement actions and citizens' suits,
88     farmers and ranchers must ensure that farming and ranching activities do not cause a discharge
89     of any pollutant (including pesticides and fertilizers) into any "waters of the United States" or
90     that the activities are authorized by a federal Clean Water Act permit;
91          WHEREAS, the rule requires farmers and ranchers to seek new federal permits for
92     pesticide and fertilizer applications to these newly defined "waters of the United States";
93          WHEREAS, the rule does not provide landowners with the tools needed to determine
94     whether water features on their property are "waters of the United States"; and
95          WHEREAS, the new rule exceeds the scope of jurisdiction granted by Congress in the
96     Clean Water Act, and thus violates the Administrative Procedure Act:
97          NOW, THEREFORE, BE IT RESOLVED that the Legislature of the state of Utah, the
98     Governor concurring therein, finds the rule defining "waters of the United States" to be an
99     unlawful exercise of federal regulatory authority.
100          BE IT FURTHER RESOLVED that the Legislature and the Governor support the legal
101     challenge brought by Attorney General Sean Reyes to vacate the final rule.
102          BE IT FURTHER RESOLVED that a copy of this resolution be sent to Governor
103     Herbert, Attorney General Sean Reyes, and Utah's congressional delegation.