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Texas Judge Sinks WOTUS Rule

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A U.S. District Court judge in Galveston, Texas has decided the Obama administration’s 2014 definition of “Waters of the United States” took place without complying with the federal Administrative Procedures Act (APA).

The Obama EPA “…wanted to ensure that the [Clean Water] Act enabled jurisdiction over a particular category of waters which either alone or in combination with similarly situated waters in the region significantly affect[ed] the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, or the territorial seas.”

The judge discussed an EPA document called the Draft Connectivity Report. This document essentially said that all waters are connected directly and that EPA, from a scientific standpoint, could or should regulate every drop of water on private property. The Connectivity Report basically said all water runs downhill and from a scientific standpoint it all should be regulated. (By the way, this is the exact opposite of what the Clean Water Act directed.)

The court describes how EPA and the Corps of Engineers allowed all parties an opportunity to comment on the Obama Administration initial proposed rule. During this period the EPA Connectivity Report was finalized. However, the Obama-proposed WOTUS rule was never open for public comment “after” the final Connectivity Report was issued. Six months after the Final Connectivity Report was issued, EPA and the Corps released the final WOTUS rule (June 29, 2015).

All will recall the explosive reaction against the Obama Administration proposed WOTUS definition. Landowners all over the country were up in arms against this outrageous grab for power. Trump’s campaign promise Candidate Trump raised this issue frequently during his campaign for President. He promised that one of his first acts as President would be repealing this terrible property grabbing effort by the Obama EPA and the Corps.

There was a major problem however. The final Rule parted from the proposed WOTUS rule in one key aspect. Mainly, the Final Rule defined ‘adjacent waters’ under the Act using distance-based criteria, rather than the ecologic and hydrologic criteria used in the Proposed Rule. Also, in the Proposed Rule adjacent had been defined as bordering, contiguous or neighboring; The Final Rule changed the term neighboring to mean all waters located within 100 feet of the ordinary high-water mark and if your water was located within a 100- year floodplain it would be under EPA jurisdiction 1,500 feet from the high tide line.

The court noted this was the first time EPA and the Corps had ever defined adjacency with a precise numerical distance. Numerous farm groups, along with the Texas Attorney General, sued EPA and the Corps claiming the Obama administration violated notice and comment requirements of the APA.  It was further claimed the Obama Administration denied interested parties the opportunity to comment on the Final Connectivity Report.

At the time, I wrote that the Connectivity Report was a dangerous document for agriculture, ranching and forestry. And it turned out the report did form the foundation for the Obama definition of WOTUS. Now, this Texas court said: you cannot do that. The Obama EPA and the Corps pulled a fast one and got caught by the federal judge. The court blasted EPA and the Corps, saying that notice and comment requirements are “hardly trivial” because “requirements are designed (1) to ensure that agency regulations are tested via exposure to diverse public comment, (2) to ensure fairness to affected parties, and (3) to give affected parties an opportunity to develop evidence in the record to support their objections to the rule and thereby enhance the quality of judicial review.”

It took a U.S. federal district judge and farm groups to catch the Obama EPA and Corps violating the law!

This commentary originally appeared in the June 4, 2019 edition of the online Farm Futures.

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