Federal judge rules against WOTUS

A federal judge in Texas this week invalidated the Obama administration’s 2015 Waters of the U.S. final rule, sending it back to the Environmental Protection Agency and the Army Corps of Engineers.

U.S. District Judge George C. Hanks Jr. in the Southern District of Texas said the final rule violated the notice-and-comment requirements of the Administrative Procedure Act.

In addition, he ordered the preliminary injunction issued by a Texas court in September 2018 to remain in place pending the agencies’ proceedings. That injunction blocks implementation of the rule in Texas, Louisiana and Mississippi.

The order came in response to lawsuits by those states and other plaintiffs including the American Farm Bureau Federation, National Cattlemen’s Beef Association and National Pork Producers Council.

The WOTUS rule, which expanded federal jurisdiction over which waters are regulated under the Clean Water Act, has been one of the most contentious issues in farm country. It has fueled numerous lawsuits, resulting in a regulatory patchwork of where the rule applies.

The Trump administration is now in the process of repealing and replacing the rule.

The Texas court’s ruling “validates what the administration is already trying to do,” Scott Yager, NCBA chief environmental counsel, said.

But the ruling also validates what agricultural groups have been fighting for in court going on four years now, he said.

While some courts have ordered preliminary injunctions and found the rule was unlikely to withstand a legal challenge, this is the first court ruling stating WOTUS is illegal, he said.

“This is the first time we’ve ever had that. It’s the first big, shiny decision,” he said.

The Farm Bureau issued a statement saying after years of litigation in lawsuits filed by dozens of states and trade groups, the Texas court is the first to reach a final decision on the lawfulness of the rule.

“This decision provides strong vindication for what many of us have said for years — the Waters of the U.S. rule was invalid,” Ellen Steen, Farm Bureau general counsel, said.

With the court’s decision, the rule is now blocked in 26 states by preliminary injunctions, is in force in 23 others and up in the air in one, Yager said.

“It’s a mess out there,” he said.

That situation further underscores the need for the agencies to move ahead in repealing and replacing the rule, he said.

====================================================

In accordance with Title 17 U.S.C. section 107, any copyrighted material herein is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml