Another chapter in the WOTUS story has closed. This chapter again ended with the judge calling the rule unlawful.
On Wednesday, Aug. 21, Judge Lisa Godbey Wood of the U.S. District Court of Southern Georgia issued her ruling against the 2015 Waters of the U.S. (WOTUS) rule. She ruled that the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) violated their own laws with the 2015 WOTUS rule.
“The WOTUS Rule’s definition of ‘waters of the United States’ fails to comply with Justice Kennedy’s significant-nexus test defining the reach of the Agencies’ authority under the CWA [Clean Water Act], and it substantially interferes with an area of traditional state authority without a clear indication from Congress allowing such interference in the CWA,” the court ruling read.
The rulings of Supreme Court Justices John Roberts and Anthony Kennedy in the Rapanos v. United States case were repeatedly used as standards in Wood’s ruling.
“Moreover, the Agencies failed to promulgate a final rule that was the logical outgrowth of the proposed rule, and portions of the Final Rule were promulgated arbitrarily and capriciously,” the ruling added.
Wood granted summary judgement to the plaintiffs—the states of Georgia, West Virginia, Alabama, Florida, Kansas, Kentucky, South Carolina, and Utah, and intervenors that included ag groups such as the National Cattlemen’s Beef Association, the Public Lands Council, and the American Farm Bureau Federation—and remanded the 2015 WOTUS rule back to the EPA and the Corps.
Wood noted that she remanded the rule, which sends it back to the agencies for reworking, rather than vacated it in consideration of the ongoing work to replace the rule. See the history section on page NUMBER for more information.
Findings and relevant details
Wood ultimately agreed with most of the plaintiff’s challenges to the 2015 WOTUS rule. These included that the rule violated:
• the CWA by unlawfully extending the agencies’ jurisdiction well beyond what Congress intended;
• the CWA by too-broadly and vaguely defining various types of waters;
• the CWA by interfering with lands and waters traditionally under state authority without the necessary clear intent of Congress;
• the Administrative Procedures Act (APA) by issuing the final rule that included substantive changes on which stakeholders were not given the opportunity to comment; and
• the APA by being arbitrary and capricious, specifically in relation to distance limitations for certain types of waters and by inconsistent failure to apply the farming exclusion to certain types of waters.
On the latter point, Wood accepted one distance limit the agencies used. The 2015 WOTUS rule claimed all waters within 100 feet of a jurisdictional water that can impact that water constitute a “significant nexus.” Wood judged the reasoning that brought the agencies to the 100-feet limit was acceptable.
“In other words, the Agencies justified their selection of 100 feet by demonstrating that waters within that specifically chosen limit have a significant effect on the chemical, physical, and biological integrity of navigable waters—i.e., a significant nexus,” the ruling read.
“In light of the specific scientific findings highlighted by the WOTUS Rule and the Supreme Court’s prior holdings on adjacent waters, the Court finds that a 100-foot limit, roughly 30 yards, from a primary navigable water is lawful because waters within that limit have a significant nexus to the primary waters.”
This court-accepted definition of a significant nexus has the potential to set precedent.
History of WOTUS suits
The path to this ruling was a long one. Even before the 2015 WOTUS rule took effect in August 2015, there was a flood of litigation, mostly from states seeking to enjoin the rule. Lawsuits were filed in both district courts and the courts of appeals.
The early lawsuits alleging the rule violated U.S. regulations and even the 10th Amendment of the Constitution were put on hold as the courts sorted out the proper jurisdiction. In the meantime, a patchwork of stays and injunctions meant the 2015 WOTUS rule applied to about a third to half of the states at any given time.
The question of proper jurisdiction eventually reached the Supreme Court in January 2018. The highest court ruled that substantive challenges to the 2015 WOTUS rule should be addressed in the district courts. This ultimately led to this decision.
During this legal morass, the administration changed, and the EPA and Corps made efforts to change and then rescind the 2015 WOTUS rule. Though these efforts were similarly dogged by lawsuits, the direction shift did result in the release of a proposed new WOTUS rule in December 2018.
In general, the new WOTUS rule has been mostly praised by agricultural industry groups as being clearer and protecting agricultural concerns. The new WOTUS rule is currently involved in the usual system comment periods and assessment. Most recently, the 60-day comment period closed in April 2019 on the proposed new rule. Over 621,000 comments were collected.
The next step will be the draft rule that takes the comments into consideration. It is uncertain when that will happen. — Kerry Halladay, WLJ editor
