Court Tosses 2015 Obama WOTUS Rule

Johnathan H. Adler

Last night, in Texas v. U.S. Environmental Protection Agency, a federal district court in Texas held that the Obama Administration violated the Administrative Procedure Act when it adopted a revised definition of "waters of the United States" in 2015, and remanded the so-called WOTUS rule back to the federal agencies from whence it came. The definition of "waters of the United States" is of particular importance because it defines the scope of federal regulatory jurisdiction under the Clean Water Act (CWA). In short, the CWA prohibits the discharge of materials into "navigable waters" without a federal permit, and the Act defines "navigable waters" as "waters of the United States." A broader definition means that more activities that take place on or near such "waters" are subject to federal regulation. The precise scope of CWA jurisdiction has been the subject of litigation and legal wrangling for decades. In 2015, the U.S. Army Corps of Engineers and Environmental Protection Agency sought to bring greater certainty to CWA regulation with a new, fairly broad definition of "waters of the United States"—the so-called WOTUS rule. Yet because this rule adopted an expansive interpretation of "waters of the United States," numerous states, industry organizations, and property rights groups sued. Much of the debate over the 2015 WOTUS rule focuses on whether the Obama Administration asserted federal regulatory jurisdiction beyond the scope of what the CWA authorizes or the Constitution permits. Yet Judge Hanks did not need to reach such questions to throw out the rule. In promulgating the 2015 rule, the Army Corps and EPA failed to comply with the basic requirements of notice-and-comment rulemaking under the Administrative Procedure Act (APA). Specifically, Judge Hanks noted, key aspects of the final rule were not a "logical outgrowth" of the initial regulatory proposal published in the Federal Register and the public was never given the opportunity to comment on a key study that was "instrumental" in the final regulation adopted by the EPA and Army Corps...MORE