Fed Court strikes down WOTUS

Washington--A federal court this week invalidated the Environmental Protection Agency and Army Corps of Engineers’ 2015 expansion of federal jurisdiction over small and isolated waters. After years of litigation in suits filed by dozens of state governments and trade groups, this is the first court to reach a final decision on the lawfulness of the 2015 Waters of the United States rule. Several court decisions have preliminarily blocked the rule in many states while the litigation progressed. 

The U.S. Court for the Southern District of Texas ruled that the agencies violated basic requirements of fair process when they concluded the 2015 rulemaking without first releasing for comment a key report that was the basis for many of their most controversial decisions.

The order came in response to suits by a group of 17 private-sector plaintiffs that included the American Farm Bureau Federation and a broad coalition of business and industry organizations as well as the states of Texas, Louisiana, and Mississippi. The groups challenged the 2015 WOTUS rule as unlawfully expanding federal jurisdiction at the expense of state and municipal authority and offending basic rules of fair process. Having found the rule unlawful for procedural violations, the court did not consider the various other statutory and constitutional challenges.

AFBF General Counsel Ellen Steen praised the court’s decision. “This decision provides strong vindication for what many of us have said for years — the waters of the U.S. rule was invalid. It is time for the agencies to move on to a legally sound basis for determining federal jurisdiction over waters.”

Several other legal challenges to the 2015 rule remain pending in federal courts across the country. Under the Trump administration, EPA and the Corps of Engineers have proposed to repeal the rule and issue a new regulation that appropriately defines federal waters.