Federal judge rules against WOTUS
A federal judge in Texas this week invalidated the Obama
administration’s 2015 Waters of the U.S. final rule, sending it
back to the Environmental Protection Agency and the Army Corps
U.S. District Judge George C. Hanks Jr. in the Southern District
of Texas said the final rule violated the notice-and-comment
requirements of the Administrative Procedure Act.
In addition, he ordered the preliminary injunction issued by a
Texas court in September 2018 to remain in place pending the
agencies’ proceedings. That injunction blocks implementation of
the rule in Texas, Louisiana and Mississippi.
The order came in response to lawsuits by those states and other
plaintiffs including the American Farm Bureau Federation,
National Cattlemen’s Beef Association and National Pork
The WOTUS rule, which expanded federal jurisdiction over which
waters are regulated under the Clean Water Act, has been one of
the most contentious issues in farm country. It has fueled
numerous lawsuits, resulting in a regulatory patchwork of where
the rule applies.
The Trump administration is now in the process of repealing and
replacing the rule.
The Texas court’s ruling “validates what the administration is
already trying to do,” Scott Yager, NCBA chief environmental
But the ruling also validates what agricultural groups have been
fighting for in court going on four years now, he said.
While some courts have ordered preliminary injunctions and found
the rule was unlikely to withstand a legal challenge, this is
the first court ruling stating WOTUS is illegal, he said.
“This is the first time we’ve ever had that. It’s the first big,
shiny decision,” he said.
The Farm Bureau issued a statement saying after years of
litigation in lawsuits filed by dozens of states and trade
groups, the Texas court is the first to reach a final decision
on the lawfulness of the rule.
“This decision provides strong vindication for what many of us
have said for years — the Waters of the U.S. rule was invalid,”
Ellen Steen, Farm Bureau general counsel, said.
With the court’s decision, the rule is now blocked in 26 states
by preliminary injunctions, is in force in 23 others and up in
the air in one, Yager said.
“It’s a mess out there,” he said.
That situation further underscores the need for the agencies to
move ahead in repealing and replacing the rule, he said.
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