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Court strikes 2015 Waters of the United States rule

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A federal court this week invalidated the Environmental Protection Agency’s and Army Corps of Engineers’ 2015 expansion of federal jurisdiction over small and isolated waters. After years of litigation in suits filed by dozens of state governments and trade groups, this is the first court to reach a final decision on the lawfulness of the 2015 Waters of the United States rule. Several court decisions had preliminarily blocked the rule in many states while the litigation progressed.  

The U.S. Court for the Southern District of Texas ruled that the agencies violated basic requirements of fair process when they concluded the 2015 rulemaking without first releasing for comment a key report that was the basis for many of their most controversial decisions.

“This meant that the Proposed Rule was never open for public comment after the Final Connectivity Report was finalized,” the court said in its ruling.

This matters due to key aspects changing from the proposed rule to the final rule. The court said, “Although generally similar to the Proposed Rule in that it defined the phrase WOTUS in jurisdictional groups, the Final Rule departed from the Proposed Rule in at least one key respect. Namely, the Final Rule defined ‘adjacent waters’ under the Act using distance-based criteria, rather than the ecologic and hydrologic criteria used in the Proposed Rule.” 

For example, the final rule changed the term “neighboring” to mean “all waters located within 100 feet of the ordinary high water mark” of a jurisdictional water. This was the first time that the agencies gave notice that they intended to define adjacency by numerical distance-based criteria. 

The order came in response to suits by a group of 17 private-sector plaintiffs that included the American Farm Bureau Federation and a broad coalition of business and industry organizations as well as the states of Texas, Louisiana, and Mississippi. The groups challenged the 2015 WOTUS rule as unlawfully expanding federal jurisdiction at the expense of state and municipal authority and offending basic rules of fair process. Having found the rule unlawful for procedural violations, the court did not consider the various other statutory and constitutional challenges.

American Farm Bureau Federation’s General Counsel Ellen Steen praised the court’s decision. “This decision provides strong vindication for what many of us have said for years — the waters of the U.S. rule was invalid. It is time for the agencies to move on to a legally sound basis for determining federal jurisdiction over waters.”

Several other legal challenges to the 2015 rule remain pending in federal courts across the country. Under the Trump administration, EPA and the Corps of Engineers have proposed to repeal the rule and issue a new regulation that appropriately defines federal waters.

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