Federal Court Send WOTUS Back to EPA

Federal Judge Finds WOTUS Violated Clean Water Act

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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Courts have wrestled with the definition of "navigable" waters since the inception of the waters of the United States rule. (DTN file photo by Chris Clayton)

OMAHA (DTN) -- The 2015 waters of the United States, or WOTUS, rule has suffered another legal blow as a federal court in Georgia sent the rule back to EPA and left a preliminary injunction in place in 11 states.

The U.S. District Court for the Southern District of Georgia found the agency overstepped the Clean Water Act and violated the Administrative Procedure Act in drafting the rule.

The Georgia court kept in place a preliminary injunction preventing the rule from becoming effective in the 11 states, while the EPA finalizes its own repeal and replacement of the 2015 rule.

The EPA declined to defend the case in the Georgia court, leaving it to interveners the National Wildlife Federation and One Hundred Miles.

The American Farm Bureau Federation said in a statement on Thursday the ruling affirms what the group has said since the 2015 rule was finalized.

"The court ruling is clear affirmation of exactly what we have been saying for the past five years," AFBF General Counsel Ellen Steen said in the statement.

"The EPA badly misread Supreme Court precedent. It encroached on the traditional powers of the states and simply ignored basic principles of the Administrative Procedure Act when it issued this unlawful regulation. The court found fault with the EPA's interpretation of some of the most basic principles of the CWA, most importantly which waters the federal government may regulate, and which waters must be left to states and municipalities."

The U.S. District Court for the Southern District of Texas ruled in May 2019 that EPA violated the law in making changes in the final rule that were not proposed in the preliminary rule. That court also sent the rule back to the agency.

In its ruling on Wednesday, the Georgia court said the rule extended EPA's and the U.S. Army Corps of Engineers' "delegated authority beyond the limits of the CWA, and thus is not a permissible construction of the phrase 'waters of the United States' within the statute. In addition, the Georgia court joined the Texas court in ruling the EPA promulgation of the WOTUS rule violated the Administrative Procedure Act. A number of states and a variety of interest groups including AFBF were plaintiffs in the case.

One of the more interesting legal issues about Clean Water Act jurisdiction centers on the defining the term "navigable" as it appears in law. Courts have wrestled with the definition since the inception of the act.

In her ruling on Wednesday, Judge Lisa Godbey Wood addressed the navigable-waters question.

"Because this broad definition would include waters that have little or no connection to navigable-in-fact waters like the ponds in SWANCC (a previous legal case), the inclusion of all interstate waters violates the significant-nexus test and therefore exceeds the agencies' authority under the CWA," she wrote.

After a long series of court actions the past couple of years, a split remains between states still under jurisdiction of the 2015 rule and those that are not.

At present, the rule is on hold in 28 states and in effect in 22.

In the meantime, EPA continues to work on finalizing a new rule.

For the past three years, the 2015 WOTUS rule has been hung up by dozens of lawsuits and legal procedures across the country.

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

Follow him on Twitter @toddneeleyDTN

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Todd Neeley