Another Court Says 2015 WOTUS Rule Is Unlawful

August 23, 2019 | Kristine A. Tidgren

On August 21, 2019, the United States District Court for the Southern District of Georgia became the second federal court in the past three months to rule that the 2015 Waters of the United States Rule (the WOTUS Rule), was improperly issued by the Environmental Protection Agency and the U.S. Army Corps of Engineers. Rather than vacate the rule, the court remanded it to the agencies for further action. This case is Georgia v. Wheeler, No. 2:15-Cv-00079 (S.D. Ga. August 21, 2019).

The plaintiffs in this case included the States of Georgia, West Virginia, Alabama, Florida, Kansas, Kentucky, South Carolina, and Utah. They filed a lawsuit shortly after the WOTUS Rule was finalized, asking the court to vacate the Rule on the grounds that:

  1. The agencies exceeded their statutory authority under the Clean Water Act,
  2. The agencies failed to adhere to the Administrative Procedures Act, and
  3. The Rule violated the Tenth Amendment and Commerce Clause of the U.S. Constitution

A number of industry plaintiffs, such as the American Farm Bureau Foundation and the American Petroleum Institute, intervened in the lawsuit shortly after it was filed. Intervening defendants, the National Wildlife Federation and One Hundred Miles, stepped in to defend the Rule once the federal agencies no longer sought to defend the substantive challenges.

The court, like several other district courts throughout the country, entered a preliminary injunction in 2015 preventing the Rule from going into effect in the jurisdictions impacted by the lawsuit. Four years later, the Georgia court finally entered judgment on the merits of the case.

The court ruled that even though the agencies’ interpretation of “waters of the United States” was entitled to deference under Chevron v. NRDC, 467 U.S. 837, 843 (1984), the agencies had exceeded their statutory authority in issuing it. The court ruled that by including all interstate waters in the definition of WOTUS, the agencies had written the word “navigable” out of the Clean Water Act (CWA). The Rule asserted federal jurisdiction over waters that were not navigable and that did not connect to navigable waters. Under this approach, a mere “trickle, an isolated pond, or some other small, non-navigable body of water would be under federal jurisdiction simply because it crosses a state line.” This, the court ruled, would include water with little or no connection to navigable-in-fact waters and would violate the significant nexus test set forth in Rapanos v. United States, 547 U.S. 715 (2006). The court also found that the agencies’ assertion of jurisdiction over “tributaries” was an impermissible construction of the CWA. Tributaries, “however remote and insubstantial” were included within the definition of WOTUS under the Rule. The court also found that the agencies' assertion of jurisdiction over “adjacent” waters was impermissible because the definition of adjacent was based on the overbroad definition of tributaries. The court thus held that the WOTUS Rule was unlawful under the CWA.

The court also held that the WOTUS Rule was unlawfully promulgated because it was not a logical outgrowth of the proposed rule, as was required under the Administrative Procedures Act. The final rule changed the definition of “neighboring” waters, subject to CWA jurisdiction, from an ecological and hydrological scheme to a purely distance-based scheme. This, the court ruled, was not a change interested parties could have anticipated. The court also found that a farming exemption for adjacent waters, but not tributaries, that was included only in the final rule, was not a logical outgrowth of the proposed rule and constituted more than harmless error. The agencies thus violated the notice requirements of the APA in issuing the Rule. Finally, the court ruled that the inclusion of a farming exemption for adjacent waters but not tributaries, as well as several distance-based limits, were also arbitrary and capricious in violation of the APA.

Because the court ruled that agencies violated both the CWA and the APA in promulgating the Rule, it declined to consider whether the Rule was unconstitutional. Because the agencies have already begun to repeal and replace the WOTUS Rule, the court determined that an order vacating the Rule might cause disruptive consequences to the ongoing administrative process. As such, the court remanded the Rule to the agencies for further proceedings and ruled that the preliminary injunction would remain in place pending ongoing administrative proceedings.

As was the case with the Texas court’s May 28, 2019, decision declaring the WOTUS Rule unlawful, this court ruling doesn’t change the status quo. The preliminary injunction remains in effect only for the states involved in the Georgia case. Twenty-three states remain subject to the WOTUS Rule, while 22 do not. And the agencies could issue their new final rule anytime.

We will continue to monitor this important issue.