Environmental Protection Agency

Another Court Invalidates 2015 WOTUS Rule

As we await the Trump Administration to finalize a new definition of "waters of the United States," federal courts continue to reject the Obama Administration's effort

|The Volokh Conspiracy |

On Wednesday, a federal district court in Georgia concluded held that the Obama Administration's attempt to define "waters of the United States" under the Clean Water Act (CWA), through the so-called "WOTUS" rule, was substantively and procedurally invalid.  This is the second court to reach this conclusion about one of the Obama Administration's more significant environmental initiatives.

The CWA generally prohibits the discharge of materials into navigable waters without a permit. "Navigable waters," in turn, are defined as "waters of the United States." And what are those? That is the question.

In two separate decisions, a majority of the Supreme Court rejected the definition of "waters of the United States" adopted by the U.S. Army Corps of Engineers and Environmental Protection Agency as too expansive. In response (and after a fair amount of dithering in both the Bush and Obama Administrations), the Army Corps and EPA promulgated a new, fairly expansive definition in 2015. This is the so-called WOTUS rule, which has been the subject of multiple legal challenges filed by states, regulated entities, and property rights advocates,

On Wednesday, Judge Lisa Godbey Wood of the U.S. District Court for the Southern District of Georgia concluded that the 2015 WOTUS rule was unlawful. Echoing a prior opinion from a federal district court in Texas, Judge Wood concluded that the 2015 WOTUS rule exceeded the agencies' statutorily authorized jurisdiction and that the rule was also procedurally invalid under the Administrative Procedure Act because, among other things, the final rule was not a logical outgrowth of the proposed rule published in the Federal Register. A copy of Judge Wood's 80-plus-page opinion is here.

This is hardly the end of the story though. The Trump Administration is working on its own definition of "waters of the United States" to replace the Obama Administration's rule. This new definition, much like the Obama rule, will be the subject of legal challenge. Whether this new rule survives will depend, in part, on whether the Trump Administration has learned from its frequent court losses in other environmental cases. Cutting corners in the administrative process is a sure way to see one's regulatory initiatives overturned in court.

 

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  1. Judge Wood concluded that the 2015 WOTUS rule exceeded the agencies’ statutorily authorized jurisdiction and that the rule was also procedurally invalid under the Administrative Procedure Act because, among other things, the final rule was not a logical outgrowth of the proposed rule published in the Federal Register.

    Was it a procedural outgrowth of the proposed rule published in the Federal Register? For instance, was the reason the final rule became a bad match for the published proposal because the final rule had been adjusted to accommodate comments and criticisms? If that is what happened, why does Judge Wood get to reject the result?

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