Texas Court Rules Against Obama Era Water Rule

The U.S. Federal Court of the Southern District of Texas has ruled that the “2015 Waters of the United States (WOTUS)” rule is unlawful. The 2015 rule effectively granted the Federal government jurisdiction over virtually any standing body of water located in the United States including roadside drainage ditches, groundwater and recycling facilities.

“This ruling affirms the appropriate action already underway at the EPA to correct a deeply problematic regulation that impermissibly expanded federal jurisdiction to virtually any standing body of water.” Said National Mining Association (NMA) President Hal Quinn.

In his ruling, Judge George C. Hanks Jr. agreed with the arguments made by NMA and other plaintiffs that the final rule differed so substantively from the proposed rule that stakeholders were deprived of the opportunity to comment on two substantial changes.

First, the court held that no notice was given regarding change in definition of “adjacent waters.” Specifically, the court found the change to distance-based criteria from the ecologic and hydrologic criteria violated the Administrative Procedure Act’s (APA) notice-and-comment requirements by deviating from the proposed rule in a way that interested parties could not have reasonably anticipated.

Second, the court held that the agency finalized the rule without allowing comment on the final connectivity report, the most critical factual material used to support the final rule. Ultimately, the court concluded that “the APA does not envision requiring interested parties to parse through vague references like tea leaves to discern an agency’s regulatory intent regarding such significant changes to a final rule.”

Because the court found that the rule violated the notice-and-comment requirements of the APA, it did not address other substantive challenges to the rule. The court remanded the 2015 rule to the U.S. Environmental Protection Agency and the Army Corps of Engineers while maintaining the preliminary injunction against the rule that it first imposed in 2018.

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