August 22, 2019
A federal court said the 2015 waters of the U.S. (WOTUS) rule is unlawful under the Clean Water Act (CWA) because of its “vast expansion of jurisdiction over waters and land traditionally within the states’ regulatory authority.”
The court for the southern district of Georgia found the Environmental Protection Agency, which was under the Obama Administration at the time, overstepped not just the CWA but also the Administrative Procedure Act (APA), which lays out the most basic rules governing how agencies may propose and establish federal regulations.
The Georgia court kept in place a preliminary injunction preventing the rule from becoming effective in the 11 states involved in the lawsuit while EPA finalizes its own repeal and replacement of the 2015 rule.
The court opinion noted that after analyzing the administrative record, “the court holds that the WOTUS rule extends the agencies’ 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 and that the agencies’ promulgation of the WOTUS rule violates the APA’s procedural requirements,” the ruling noted.
The ruling was a victory not just for the plaintiff states but a broad coalition of more than a dozen private-sector groups, including the American Farm Bureau Federation.
“The court ruling is clear affirmation of exactly what we have been saying for the past five years: The EPA badly misread Supreme Court precedent,” American Farm Bureau Federation general counsel Ellen Steen said. “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.”
Jurists repeatedly criticized EPA’s handling of the WOTUS rule-making, in particular its interpretation of the Supreme Court’s “Rapanos” decision, which laid out guidelines for determining where federal jurisdiction begins and ends.
The American Farm Bureau Federation, in partnership with a coalition of groups, has urged a repeal and replacement of the 2015 rule to ensure clean water and clear rules.
Plaintiffs that filed the present lawsuit against the administrators of EPA and the Army Corps of Engineers on June 30, 2015, include the states of Georgia, West Virginia, Alabama, Florida, Kansas, Kentucky, South Carolina and Utah.
Since then, the state plaintiffs have been joined by intervening plaintiffs, including: the American Farm Bureau Federation, American Forest & Paper Assn., American Petroleum Institute, American Road and Transportation Builders Assn., Georgia Association of Manufacturers, Georgia Farm Bureau Federation, Leading Builders of America, National Alliance of Forest Owners, National Association of Home Builders, National Association of Manufacturers, National Cattlemen’s Beef Assn., National Corn Growers Assn., National Mining Assn., National Pork Producers Council, National Stone, Sand & Gravel Assn., Public Lands Council and U.S. Poultry & Egg Assn.
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