Another head of the WOTUS-hydra has been lopped off in the ongoing legal quagmire. This time, the rule fell prey to a common legal weapon—comment protocol laws.
On Tuesday, May 28, U.S. District Judge George Hanks Jr. of the Southern District of Texas ruled the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) violated the notice-and-comment requirement of the Administrative Procedures Act (APA) with definition changes in the 2015 Waters of the U.S. (WOTUS 2015) rule.
Specifically, substantial changes to definitions of “adjacent waters” were made without letting stakeholders comment.
Hanks argued that the shift from ecological and hydrological criteria to define neighboring waters in the Proposed Rule, to using numerical distances in the Final Rule was substantial.
“This shift in terminology and approach led to the promulgation of a Final Rule that was different in kind and degree from the concept announced in the Proposed Rule,” Hanks wrote in his ruling. Comments are not collected on Final Rules, meaning the WOTUS 2015 Final Rule “was deprived of the benefit of comment.”
Hanks ultimately remanded the WOTUS 2015 rule back to the EPA and Corps for further consideration. He additionally reiterated the injunction issued by the Texas court against the rule in 2018. Currently, WOTUS 2015 is enjoined in 28 states and in effect in 22, and is embroiled in numerous ongoing lawsuits around the country.
Recent activities related to WOTUS 2015 include:
• January 2018; the EPA delayed WOTUS 2015 for two years so it could be rewritten.
• February 2018; the attorneys general of 10 states sued the EPA for the delay, alleging it to be unlawful. The delay was thrown out in court.
• June 2018; a preliminary injunction was issued against WOTUS 2015 by the U.S. District Court of Georgia.
• August 2018; a federal judge in the District Court of South Caroline ruled the EPA violated the APA in issuing the January 2018 delay rule.
• December 2018; the EPA issued a new WOTUS rule to replace WOTUS 2015. This new WOTUS was welcomed and praised by agricultural groups as bringing clarity to the issue, but concerns remained in how ditches and groundwater would be regulated.
• February 2019; the EPA opened a public comment period on the new WOTUS.
The new WOTUS is expected to be finalized by September of this year. Its finalization is expected to ignite another explosion of litigation.
Reactions in ag
The reactions to the ruling were unsurprisingly positive from livestock groups.
“This decision provides strong vindication for what many of us have said for years—the Waters of the U.S. rule was invalid,” commented American Farm Bureau Federation (AFBF) General Council, Ellen Steen in the group’s response to the ruling. AFBF were among the 17 private-sector plaintiffs on the case.
“It is time for the agencies to move on to a legally sound basis for determining federal jurisdiction over waters.”
Robert McKnight, Jr., president of the Texas and Southwestern Cattle Raisers Association, called it a “victory for Texas cattle producers.” He further decried WOTUS 2015 as “an unprecedented land grab.”
“The ruling validates our long-standing concerns with the substance of the rule and the process by which it was implemented.” — Kerry Halladay, WLJ editor
