Clean Water Act

Court Tosses 2015 WOTUS Rule

In redefining "waters of the United States," the Obama Administration failed to follow the Administrative Procedure Act.

|The Volokh Conspiracy |

Last night, in Texas v. U.S. Environmental Protection Agency, a federal district court in Texas held that the Obama Administration violated the Administrative Procedure Act when it adopted a revised definition of "waters of the United States" in 2015, and remanded the so-called WOTUS rule back to the federal agencies from whence it came.

The definition of "waters of the United States" is of particular importance because it defines the scope of federal regulatory jurisdiction under the Clean Water Act (CWA). In short, the CWA prohibits the discharge of materials into "navigable waters" without a federal permit, and the Act defines "navigable waters" as "waters of the United States." A broader definition means that more activities that take place on or near such "waters" are subject to federal regulation.

The precise scope of CWA jurisdiction has been the subject of litigation and legal wrangling for decades. In 2015, the U.S. Army Corps of Engineers and Environmental Protection Agency sought to bring greater certainty to CWA regulation with a new, fairly broad definition of "waters of the United States"—the so-called WOTUS rule. Yet because this rule adopted an expansive interpretation of "waters of the United States," numerous states, industry organizations, and property rights groups sued.

Much of the debate over the 2015 WOTUS rule focuses on whether the Obama Administration asserted federal regulatory jurisdiction beyond the scope of what the CWA authorizes or the Constitution permits. Yet Judge Hanks did not need to reach such questions to throw out the rule.

In promulgating the 2015 rule, the Army Corps and EPA failed to comply with the basic requirements of notice-and-comment rulemaking under the Administrative Procedure Act (APA). Specifically, Judge Hanks noted, key aspects of the final rule were not a "logical outgrowth" of the initial regulatory proposal published in the Federal Register and the public was never given the opportunity to comment on a key study that was "instrumental" in the final regulation adopted by the EPA and Army Corps.

According to Judge Hanks:

the Final Rule violated the APA's notice-and-comment requirements by deviating from the Proposed Rule in a way that interested parties could not have reasonably anticipated. Instead of continuing to use ecologic and hydrologic criteria to define "adjacent waters" as originally proposed, the summary judgment evidence reflects that the Final Rule abandoned this approach and switched to the use of distance-based criteria. . . . 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.

Specifically, the Proposed Rule defined "adjacent waters" based on the presence of a "hydrologic connection" with a Categorically Covered Water or a Categorically Covered Water's "influence [on] the ecological processes and plant and animal community structure" of a potentially covered water. . . . The
summary judgment evidence reflects that commentators to the Proposed Rule spent months evaluating the merits of this definition. However, in contrast, the Final Rule defined "adjacent waters" by proximity to Categorically Covered Waters. . . .

The Final Rule also violated the APA by preventing interested parties from commenting on the studies that served as the technical basis for the rule. As the courts have held, "[a]n agency commits serious procedural error when it fails to reveal portions of the technical basis for a proposed rule in time to allow for meaningful commentary." Owner-Operator Indep. Drivers Ass'n v. Fed. Motor Carrier Safety Admin., 494 F.3d 188, 199 (D.C. Cir. 2007). Indeed, it is a "fairly obvious proposition that studies upon which an agency relies in promulgating a rule must be made available during the rulemaking in order to afford interested persons meaningful notice and an opportunity for comment." Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 237 (D.C. Cir. 2008). "The most critical factual material that is used to support the agency's position on review must have been made public in the proceeding and exposed to refutation." Air Transp. Ass'n of Am. v. FAA, 169 F.3d 1, 7 (D.C. Cir. 1999).

Here, the Agencies failed to give commentators an opportunity to refute the most critical factual material used to support the Final Rule—the Final Connectivity Report. Indeed, the summary judgment record establishes that the Final Connectivity Report was the technical basis for the Final Rule and was instrumental in determining what changes were to be made to the definition of the phrase WOTUS. . . .

Texas v. U.S. EPA is one of three challenges to the 2015 WOTUS rule pending in federal court. As Greenwire notes, there are other suits pending in federal court in North Dakota and Ohio. In addition, the Trump Administration is at work on its own revised WOTUS definition, which aims to increase regulatory certainty without significantly expanding federal regulatory jurisdiction. No doubt this WOTUS rewrite, when final, will be a target of litigation too. In the meantime, the Obama Administration's WOTUS rule in enjoined in half of the nation, and is now in force in the rest.

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  1. Strange that the District Court didn’t issue a nationwide injunction against enforcing the current WOTUS. That is becoming current legal custom, is it not?

    1. You’ve got it backwards, a district court judge in California will issue an injunction prohibiting the government from rolling back the WOTUS rule.

      If you’re looking for the unifying principle, it’s Orange Man Bad.

      1. Orange man IS mostly bad, but how does that have anything to do with this?

        1. Because that’s the sort of sound reasoning most courts use.

          1. How, exactly, are they applying “orange man bad” to a case with no orange men in them? Does it shorten to just “man bad”, or is there another aspect?

      2. I was hoping that after this Court issued a national injunction against the current Wotus, a Hawaiian Court would issue a national injunction prohibiting the rollback of the current WOTUS rule. Nothing like conflicting national injunctions to wake up SCOTUS.

  2. This was exactly what I wanted from this administration, Gorsuch is only gravy.

    1. The judge is an Obama appointee.

      1. After twice being appointed by Gov. Perry.

          1. Just for context.

      2. So Obama’s behavior was so egregious that even a liberal hack couldn’t find a colorable way to bail him out.

        1. Watching right-wingers’ last gasp of political relevance is enjoyable.

          Are you guys working on that machine that would mass-produce uneducated, religious, unskilled, easily frightened, downscale, stale-thinking, gun-fondling, rural and/or southern, bigoted white males?

          Demographic trends indicate that perfecting such a device — if the Conspirators and other Republican lawyers can figure a way to register such newly minted goobers to vote — may be the sole chance right-wingers have to avoid political irrelevance as the American electorate improves in predictable ways.

          1. An increasing number of third world Hispanics is not an “improvement.”

      3. But it fairs far better chance on appeal than it would have with say a Justice Merrick Garland. The Judge maybe a Democratic appointee, but I suspect that a lot of Democrats from Western States would agree that this was dishonestly done. Right now we have only two Westerners on the Court, and Breyer is from San Francisco.

  3. It’s impossible to integrate the phrase “Navigable waters” with the definition of Waters of the United States. At the very least the definition of navigable must at least encompass free navigation of a canoe with minimal portage. To then say navigable means a springtime morrass whether connected or not to an eventual navigable stream is not English, or a legally coherent definition.

    1. I somewhat agree… one is a reference to waterways, and the other is related to the actual nature of water.

      There’s a justification to link them… water (by it’s nature) flows… sometimes by a course that is exposed to the air, and sometimes not. Contaminating water at point A can cause contamination at point B even if there isn’t a visible watercourse between them, because water can flow underground.

      However, your test of canoe-with-minimal-portage is insufficient, because some waterways are navigable via submarine.

      1. Rainwater “flows” ergo Fed. jurisdiction over all water, yea.

        1. Not what I said, but if you insist, sure. Fed jurisdiction over all water.

  4. At least now we have a President who respects the rule of law and knows he’s not allowed to rule by fiat (i.e. “pen and phone”).

    1. Parody, satire, and irony all died years ago. You won already, so give it a rest.

    2. “At least now we have a President who respects the rule of law and knows he’s not allowed to rule by fiat”

      Lucky you! Here in the states, we’ve got a couple more years of Trump.

      1. Unlike the lawless tyrant 44*, OUR HEROIC AND NOBLE PRESIDENT DONALD J. TRUMP respects the rule of law, and has fought his battles in the courts and respected their judgements, even the lawless ones of the 44*-appointed judges.

        1. Yes, under an originalist reading of the constitution and following the principles of Natural Law, Donald Trump doesn’t have to enforce any laws from the Obama administration because he was not an American citizen, which makes them null and void. That Trump does at all is just a sign of his good character and willingness to play fair within the system that immorally constrains him.

          1. Pres. Trump may be a coward (illusory bone spurs), a vainglorious boor, a scammer (Trump University), an incorrigible cheater, and a silver-spooned vulgarian whose third wife has a sketchy immigration record, but he is an American citizen nonetheless.

            1. Of course Trump is a citizen. You read my satire wrong, I was engaging in hyperbolic Obama bitherism and MAGAism to make fun of Chem’s poor attempt at trolling.

            2. Have you started precinct level work for “Paddy O’Rourke in 2020”, yet, Art?

    3. We do not have, have never had, and most likely never will have a president that truly respects the rule of law.

      1. Taft? Coolidge?

  5. What precedent does this set for Trump?

    1. Plenty of Trump rules have been blocked on similar grounds at the district and appellate level.

      Curiously, however, the SCOTUS seems indifferent to APA restrictions on Trump’s rulemaking authority.

  6. “”[a]n agency commits serious procedural error when it fails to reveal portions of the technical basis for a proposed rule in time to allow for meaningful commentary.”

    But why is it OK for an agency ALJ to make a decision based on an “expert” who refuses to reveal portions of the technical basis for their opinions?

  7. The inconvenient technical reality is that the agricultural chemicals and other related contaminants, for example, that end up in, say, the Mississippi did not get there because they were dumped directly into the river or its navigable tributaries. It’s easy to identify those sources, but they are not today’s water quality problem. So perhaps the clean water act needs to be updated to reflect hydrological reality, but I’m not betting on it.

    1. Depends on how big the campaign contributions are from (hypothetical) polluters.

      The feds are the ones who buried radioactive-contaminated materials next to a major river. But Westinghouse is “managing” the site.

    2. Our entire statutory regime for dealing with environmental issues is wildly out of date. We need comprehensive reform – reform that could, in fact, lessen costs for businesses while at the same time serving the ultimate public good. If only the Republicans had an interest.

  8. The Fifth Circuit has been a hotbed of “rollback” activity, repeatedly tossing Obama-era rules out and leaving it to an anemic administration to decide whether they want to appeal or not.

    The consequence of this is frustrating and lawless. Trump’s administrative appointees could engage in notice and comment rulemaking. They could gather evidence and weigh the best policy in light of the facts, consistent with their political views. They could build a record and roll back these rules the right way. Instead, they’re letting friendly judges summarily toss old rules and dragging their feet on any replacement – none of which requires publishing a notice in the Federal Register. They only engage in the rulemaking process – bending the science and facts in their favor – when rules have been emphatically upheld in the courts despite years of challenges.

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