A Federal Court has ruled that an Obama-era Waters of the United States rule that expanded federal regulatory authority is in violation of the Clean Water Act because it oversteps the scope of the law.
U.S. District Judge Lisa Godbey Wood of the Southern District of Georgia also found that the Environmental Protection Agency (EPA) violated the Administrative Procedure Act (APA)—which guides agencies in creating and adopting rules—when it enacted the WOTUS rule, because the final product differed too much from the proposed rule that had been submitted for public comment.
As soon as it was enacted, the WOTUS rule drew ire from both parties in Congress, as well as farmers, ranchers and property owners. Senators John Barrasso (R-WY), Heidi Heitkamp (D-ND) and others sponsored bipartisan legislation in 2015 to address the rule. A flurry of litigation immediately followed the rule’s introduction, with those opposed arguing that it was a “power grab” and one of the most “burdensome” EPA rules from the previous administration.
The rule in question dealt with the definition of “waters of the United States.” Under federal law, discharge of materials into “navigable waters” without a permit is prohibited. The scope of the Clean Waters Act has been subject of intense legal debate for years and the Obama Administration sought to broaden the definition of what constituted “waters of the United States.”
The controversial rule granted the EPA the authority to regulate waters as small as potholes and puddles. At the time, the American Farm Bureau pointed out that this could pose a potential liability for farmers and small businesses and create economic uncertainty.
According to Judge Wood, EPA’s rule expanded authority over waters that “are not navigable-in-fact and otherwise have no significant nexus to any other navigable-fact water.”
“Specifically, the WOTUS rule states that agencies have jurisdiction over all interstate waters ‘even if they are not navigable’ and even if they ‘do not connect to such waters,’” Judge Wood wrote in her ruling. “Under such a broad definition, a mere trickle, an isolated pong, or some other small, non-navigable body of water would be under federal jurisdiction simply because it crosses a state line or lies along a state border.”
“The court ruling is clear affirmation of exactly what we have been saying for the past five years,” American Farm Bureau Federation General Counsel Ellen Steen said in a statement. “The EPA badly misread Supreme Court precedent. It encroached on the traditional powers of the states and simply ignored basic principles of the Administrative Procedure Act when it issued this unlawful regulation. The court found fault with the EPA’s interpretation of some of the most basic principles of the CWA, most importantly which waters the federal government may regulate, and which waters must be left to states and municipalities.”
The ruling comes as the Trump Administration has taken steps to rescind the WOTUS rule. In 2017, President Trump issued an executive order that directed the EPA Administrator and the Assistant Secretary of the Army for Civil Works to review, and rescind or revise, the Clean Water Rule.
Later that year, EPA announced plans to recodify the language so the definition of WOTUS in the Clean Water Act would revert back to before the 2015 rule was implemented. The move drew bipartisan support.
“I strongly support the Environmental Protection Agency’s proposal to withdraw the Waters of the U.S. rule. I am hopeful this action will start the process of bringing much needed relief for farmers, ranchers, rural businesses and local governments,” Rep. Collin C. Peterson (D-MN), ranking member on the House Committee on Agriculture said in a statement following the announcement.
And in late 2018, EPA Administrator Andrew Wheeler released details about the changes, which would provide a “straightforward definition that would result in significant cost savings, protect the nation’s navigable waters, help sustain economic growth, and reduce barriers to business development.”
“Our proposal would replace the Obama EPA’s 2015 definition with one that respects the limits of the Clean Water Act and provides states and landowners the certainty they need to manage their natural resources and grow local economies,” said Wheeler at the time. “For the first time, we are clearly defining the difference between federally protected waterways and state protected waterways. Our simpler and clearer definition would help landowners understand whether a project on their property will require a federal permit or not, without spending thousands of dollars on engineering and legal professionals.”
Judge Wood’s decision will keep a preliminary injunction in place which prevents the rule from becoming effective in 11 states who joined in on the lawsuit until EPA finalizes its replacement rule. According to Law 360, a federal judge in Texas issued a similar ruling in May which concluded that the 2015 rule violated the APA.
