FederalIssuesTexas Court Deals Blow to Obama EPA Rule

An Obama-era EPA rule dealing with waterway regulation suffered a serious blow after a Texas court declared it's application a violation of statute.
May 31, 2019
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A much-maligned Environmental Protection Agency (EPA) regulation broadening the term “waterway” under its regulatory jurisdiction, such that puddles and drainage ditches fell under its purview, was dealt a blow by the Southern District of Texas’ U.S. District Court. The judge, George C. Hanks, ruled that the EPA violated the Administrative Procedure Act’s (APA) “notice and comment” provision.

Hanks said the APA was violated by a “deviat[ion] from the Proposed Rule in a way that interested parties could not have reasonably anticipated.” Specifically, that “interested persons [have a right to] an opportunity to participate in the rulemaking through submission of written data, views, or arguments with or without opportunity for oral presentation.”

This, the judge ruled, was not afforded to parties involved.

The deviation is referring to the expansion of the “waterways of the United States” (WOTUS) provision.

WOTUS is defining language of the federal government’s authority under the Clean Water Act (CWA), meaning it dictates what falls under the EPA’s regulatory scope. The CWA was originally introduced to prevent dumping of foreign substances into public waterways.

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The broader the statute is interpreted, the broader the scope of what can be regulated, even things occurring near the water but not in it.

The EPA’s working definition of WOTUS mentions tributaries which are extended to include bodies with “ephemeral flow.”

In other words, bodies of water that do not contain water year-round. The 2015 Clean Water Rule: Definition of “Waters of the United States” excludes “certain ditches” but not all, and is thus broad enough to not only include cursory waterways, but also drainage ditches the EPA deems appropriate under its jurisdiction.

Shortly after its adoption, numerous parties — including states and other organizations — challenged the law in court. Farmers and ranchers have been especially disconcerted by the WOTUS rule.

In response to a 2017 court injunction allowing the WOTUS rule to be enforced while it faced challenges in court, Robert McKnight, Jr. — president of the Texas and Southwestern Cattle Raisers Association (TSCRA) — stated, “Cattle raisers in Texas, Oklahoma, and 24 other states are again threatened by an Obama-era land grab that has the potential to regulate them out of business.”

The cases and similar ones remain contested in court.

The question is whether the applied definition of WOTUS falls outside the constitutional and statutory authority of the CWA. The ruling states that it did extend beyond the purview of statute, and therefore is a violation of federal law.

Hanks went on to stipulate that an agency “undoubtedly has authority to promulgate a final rule that differs in some particulars from its proposed rule.” However — and specifically referring to the WOTUS aspect — “if the final rule deviates too sharply from the proposal, affected parties will be deprived of notice and an opportunity to respond to the proposal.”

Summarized, Hanks’s ruling is that the EPA’s application strayed too far from its grounding definition, and thus cut out the ability to effectively “petition” the regulation itself.

Texas Attorney General Ken Paxton said of the decision, “This critical federal court decision is a major victory for the people of Texas’ ability to regulate their own natural resources, including ponds, puddles, and streams on private property, and a major win for property owners, whose land would have been subject to unlawful and impractical EPA regulations.”

Paxton went on to say, “I’m proud to have led a multistate coalition lawsuit challenging WOTUS. My office will always stand up for the rule of law and states’ rights.”

One of President Trump’s first executive orders upon taking office was an effort to curtail the scope of the WOTUS rule.

The current application of the rule was first introduced in 2015 during President Obama’s administration.

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Brad Johnson

Brad Johnson is a senior reporter for The Texan and an Ohio native who graduated from the University of Cincinnati in 2017. He is an avid sports fan who most enjoys watching his favorite teams continue their title drought throughout his cognizant lifetime. In his free time, you may find Brad quoting Monty Python productions and trying to calculate the airspeed velocity of an unladen swallow.