Appeal from Final Action of Administrative Agency
Walker, Charles R. Dubuc, Jr., Salt Lake City, for
D. Reyes, Att'y Gen., Stanford E. Purser, Deputy Solic.
Gen., Craig W. Anderson, Paul McConkie, Asst. Att'ys
Gen., Salt Lake City, for respondents Utah Department of
Environmental Quality and Utah Division of Water Quality
John Davis, Christopher R. Hogle, M. Benjamin Machlis, Salt
Lake City, for respondent U.S. Oil Sands Inc.
Justice Himonas authored the opinion of the Court, in which
Chief Justice Durrant, Associate Chief Justice Lee, Justice
Durham and Judge Brady joined.
recused himself, Justice Pearce did not participate herein;
District Court Judge M. James Brady sat.
1 Living Rivers appears before this court for a second time
to challenge a decision by the Utah Department of
Environmental Quality (UDEQ) to issue a "permit by
rule" to U.S. Oil Sands Inc. (USOS) for a
bitumen-extraction project in the Uintah Basin. UDEQ first
permitted this project in 2008, and Living Rivers filed its
first challenge to the project in 2011. In reviewing this
first challenge, we concluded that Living Rivers' 2011
petition- although framed as a challenge to UDEQ's 2011
decision to allow USOS to expand its project without seeking
a discharge permit (a more onerous process than obtaining a
permit by rule)-was, in substance, an untimely attack on
UDEQ's 2008 permit-by-rule decision. See Living
Rivers v. U.S. Oil Sands, Inc., 2014 UT 25, ¶ 21,
344 P.3d 568');">344 P.3d 568 [Living Rivers I]. In particular, we
concluded that Living Rivers was trying to attack the 2008
analysis that supported UDEQ's determination that
USOS's project qualified for a permit by rule. According
to UDEQ's analysis, because the project site was
"not a part of the regional acquifer system" it
therefore posed only a de minimis risk to groundwater.
Id. ¶¶ 7, 24.
2 This time, Living Rivers has asked UDEQ to review yet
another proposed modification to USOS's project. Without
first assuring himself that Living Rivers had standing to
request agency action, UDEQ's Executive Director
dismissed Living Rivers' requests for agency action on
two grounds: (1) because they were the same sort of untimely
attacks on the 2008 groundwater determination that this court
rejected in Living Rivers I and (2) because
UDEQ's declining to require USOS to renew its permit by
rule was not the kind of decision that Living Rivers had a
statutory right to challenge.
3 On appeal, Living Rivers attacks the Executive
Director's conclusion that it lacks a statutory basis for
challenging UDEQ's inaction. But it does not adequately
challenge the Executive Director's other basis for
dismissing its requests for agency action-his conclusion that
Living Rivers' requests for agency action are barred by
Living Rivers I.
4 We first discharge our independent obligation to assure
ourselves that Living Rivers had standing to file its
requests for agency action. Then, despite reservations about
the Executive Director's statutory analysis, we conclude
that Living Rivers has waived its challenge to UDEQ's
decision by failing to argue that the Executive Director
erred in concluding that Living Rivers I bars Living
Rivers' requests for agency action.
5 This action is the second attempt by Living Rivers to
require UDEQ to scrutinize, and potentially curtail,
USOS's tar sands mining and processing project in the
Uintah Basin on the grounds that it is polluting the waters
of the state.
6 The Utah Water Quality Act "makes it unlawful for any
person to discharge any pollutant into the 'waters of the
state' without a permit . . . ." Living Rivers
v. U.S. Oil Sands, Inc., 2014 UT 25, ¶ 4, 344 P.3d
568. UDEQ is charged with administering this Act. To do this,
UDEQ has promulgated standards for the issuance of discharge
permits. See Utah Code § 19-5-108(1)
("[UDEQ] may make rules . . . for and require the
submission of plans, specifications, and other information to
[UDEQ] in connection with the issuance of discharge
7 In 2008-before Living Rivers had any involvement in this
matter-USOS applied to UDEQ for a "permit by rule"
for its Uintah Basin project. Living Rivers I, 2014
UT 25, ¶¶ 2, 6. The permit-by-rule process is a
"streamlined . . . permitting process" that
"allows certain applicants-including those [who show
that their project will] have a 'de minimis actual or
potential effect on ground water quality'-to bypass some
of the more rigorous regulatory requirements generally
imposed on other applicants" for discharge permits.
Id. ¶ 5 (quoting Utah Admin. Code r.
317-6-6.2.A). In 2008, UDEQ concluded that USOS's project
posed a de minimis risk to groundwater quality and therefore
qualified for permit-by-rule status. Id.
¶¶ 6-8. As we explained in Living Rivers
I, UDEQ based its decision on four factual
First, . . . that the substances that would be used were
'generally non-toxic' and would for the most part
'be recovered and recycled in the extraction
process.' Second, . . . that the extraction would be done
in tanks, and not in impoundments or process water ponds, and
that most of the water would be recovered and recycled.
Third, . . . that the excess material would not be free
draining, would have a low moisture content, and would not
contain any added constituents not present naturally in the
rock. And finally, . . . that there was only a limited amount
of shallow, localized ground water at the site that is not
part of a regional aquifer system.
Id. ¶ 7.
8 In 2011, USOS informed UDEQ of four changes to its proposed
project. After considering these changes, UDEQ concluded that
they "did not affect the original permit-by-rule
determination and that the project would [continue to] have a
de minimis effect on ground water quality." Id.
9 At this point, Living Rivers mounted its first challenge to
USOS's permit by rule. Intervening as an "aggrieved
party" under Utah Code section 63G-4-301, Living Rivers
asked UDEQ to revoke USOS's permit by rule and require
USOS "to comply with the full range of regulatory
requirements" necessary to obtain a full-blown discharge
permit. Id. ¶ 10. After a lengthy adjudicative
proceeding, UDEQ affirmed USOS's permit-by-rule status,
in part based on its conclusion that substantial evidence
supported the determination that USOS's project "did
not present a greater than de minimis risk to ground
water." Id. ¶ 11.
10 Living Rivers appealed to this court, and we affirmed but
on different grounds. We noted that Living Rivers'
challenge to the project's permit by rule, although
styled as a challenge to UDEQ's 2011 determination, was
in substance an attack on the agency's 2008 determination
that the project was isolated from regional aquifers and
therefore posed a de minimis risk of contaminating
groundwater. We reached this conclusion because Living
Rivers' challenge focused entirely on errors that UDEQ
had allegedly made during the original permit-by-rule
process. See id. ¶¶ 20-25. Thus, instead
of addressing the merits of Living Rivers' challenge (as
the agency did), we concluded that Living Rivers'
challenge was untimely. In order to challenge the
agency's 2008 groundwater analysis and determination, we
held, Living Rivers needed to have intervened within thirty
days of the agency's 2008 permit-by-rule determination.
Id. ¶ 19. "Because [Living Rivers] . . .
addressed only issues presented and resolved in 2008, in a
decision that was unchallenged and thus immune from
collateral attack, we [therefore] deem[ed] its 
petition untimely." Id. ¶ 25.
11 This brings us to Living Rivers' current challenge to
USOS's project. In November 2014, USOS notified the Utah
Division of Oil Gas & Mining (DOGM)-which oversees a
separate, operating permit that USOS is required to
maintain-of planned modifications to its project. A couple of
months later, on January 13, 2015, Living Rivers' counsel
sent an email to UDEQ asking whether USOS had submitted an
application for a discharge permit or to renew its
permit-by-rule status. On January 15, 2015, UDEQ responded
that it was "aware that U.S. Oil Sands has submitted
revisions to its mine permit for DOGM, " but that UDEQ
"has not required an application [for a discharge permit
or renewed permit by rule] because the ...