Texas Court Asked to Vacate 2015 WOTUS

Two Separate Federal Courts Consider Actions to End Legal Battle Over Water Rule

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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The waters of the United States rule has been the subject of numerous lawsuits since it was finalized in 2015. (DTN file photo by Chris Clayton)

OMAHA (DTN) -- Three states, along with the American Farm Bureau Federation, asked a federal court in Texas on Thursday to vacate the 2015 waters of the United States, or WOTUS, rule in the latest in a long series of court actions.

In separate motions filed with the U.S. District Court for the Southern District of Texas in Galveston, the states of Texas, Mississippi and Louisiana and the American Farm Bureau Federation (AFBF) asked the court to throw out the rule for a number of reasons.

AFBF has been aggressively pursuing legal avenues to kill the 2015 rule with motions filed over the past week in federal courts in both Texas and Georgia.

Currently, the rule is in effect in 22 states and on hold in 28 states, as a result of a long legal battle. The EPA continues to draft rules to repeal the 2015 rule and replace it by September 2019.

The agency had finalized a rule to delay the implementation of the 2015 rule to 2020, but that has since been struck down by another court.

The AFBF argues the EPA violated the Administrative Procedures Act by not allowing the public to comment on the rule "before making substantive changes" before it was finalized.

"It also requires the agency to make available the evidence on which the proposed rule is based," AFBF said in its motion. "The agencies flouted both requirements, failing to reopen the comment period after making important changes to the proposed rule, and withholding a key scientific report until after the initial comment period closed."

The group argues the rule was "arbitrary and contrary to law," violates the Constitution and that "by regulating dry, isolated land features that are not channels of interstate commerce and do not substantially affect interstate commerce, the rule exceeds the agencies' power under the Commerce Clause and usurps state authority under the Constitution's federalist structure."

The states ask the court to vacate the rule based on a number of constitutional issues.

They argue the 2015 rule falls outside the federal agencies' statutory authority in the Clean Water Act, that it violates the Administrative Procedures Act, that it exceeds Congress' Commerce Clause authority, and that it violates states' 10th Amendment rights.

On Oct. 12, AFBF attorneys filed a motion in the U.S. District Court for the Southern District of Georgia to have the 2015 rule vacated. The National Wildlife Federation filed a motion in the same court in support of maintaining the rule.

A number of court and government actions have been taken this year on the rule, including:

-- In January 2018, the EPA finalized a rule to delay the 2015 rule by two years to allow for an agency rewrite.

-- In February, attorneys general in 10 states sued EPA alleging the rule to delay was unlawful.

-- Also in February, the AFBF and other agriculture groups asked a court in Texas for a national preliminary injunction to prevent the 2015 rule from taking effect.

-- In June, the same district court in Georgia issued a preliminary injunction against WOTUS in 11 states.

-- In August, a federal judge in the U.S. District Court for the District of South Carolina ruled EPA did not follow the Administrative Procedures Act in finalizing its rule to delay the 2015 WOTUS for two years. As a result, the rule took effect in 26 states. That meant the rule was on hold in 24 states.

-- Also in August, the AFBF asked an appeals court in Virginia to stay the ruling in South Carolina.

-- At the end of August, the AFBF asked the Georgia court to issue a national injunction to prevent the 2015 rule from taking effect.

Todd Neeley can be reached at todd.neeley@dtn.com

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Todd Neeley