One of the most far-reaching regulatory initiatives ever undertaken by the U.S. Environmental Protection Agency (EPA) has been struck down by a federal court in Georgia and withdrawn by the Trump administration.
The 1972 Clean Water Act (CWA) prohibits the discharge of pollutants into “navigable waters” without a permit. Under the CWA, the EPA shares regulatory jurisdiction over “waters of the United States” with the U.S. Army Corps of Engineers.
Over time, the federal government expanded the definition of the types of waters protected by CWA to include ephemeral waters and wetlands, including land that is only seasonally wet and physically distant from and not directly feeding into navigable waterways. This brought non-transportation bodies of water such as isolated ponds and abandoned gravel pits under the federal government’s regulatory authority.
In two separate cases, the U.S. Supreme Court struck down such expansive definitions of navigable waters. In doing so, the Court refused to provide a strict definition of the limits to the government’s CWA authority.
In 2015, the EPA under President Barack Obama created the Waters of the United States (WOTUS) rule, removing the limiting word “navigable” from the federal government’s CWA definition. States, property owners, and farm and business groups challenged WOTUS in court, and in August 2015 the Sixth Circuit Court of Appeals in Cincinnati issued a nationwide stay on WOTUS, only to have its decision overturned by the U.S. Supreme Court in January 2018, with the Court ruling the matter properly belongs before district courts.
States, Industries Challenged WOTUS
After the Supreme Court threw WOTUS back into the district courts, eight states, led by Georgia, filed a lawsuit in the U.S. District Court for the Southern District of Georgia to have WOTUS overturned. Joining Georgia were Alabama, Florida, Kansas, Kentucky, South Carolina, Utah, and West Virginia. Several business groups joined the lawsuit as well.
The plaintiffs argued the Obama administration’s definition of “waters of the United States” was overly broad and “unconstitutionally vague.”
Having published notice in the Federal Register on February 14, 2019 it was replacing WOTUS with a different rule, the Trump administration chose not to defend the rule in court.
‘Must Comply with the Law’
Judge Lisa Godbey Wood, who heard the case for the U.S. District Court in Georgia, agreed with the plaintiffs, ruling WOTUS went beyond the EPA’s legal authority to regulate ephemeral bodies of water.
“Congress has delegated the important role of protecting the nation’s waters to the Agencies, but in fulfilling that role, the Agencies must comply with the law,” Wood stated in her ruling. “Here, they have failed to do just that. The WOTUS Rule extends the Agencies’ delegated authority beyond the limits of the CWA.”
Godbey’s August 21 decision sent the rule back to the EPA for reworking.
It was the second legal setback for WOTUS in four months. In May, a federal court in Texas reached a similar judgement, blocking enforcement of WOTUS in Texas, Louisiana, and Mississippi.
‘Ignored the Law’
The American Road and Transportation Builders Association welcomed the court’s decision.
“The decision is a win for the nation’s transportation construction industry, which is fighting the regulation because it could subject roadside ditches to federal regulations, causing delays and driving up project costs,” the group, a co-plaintiff in the suit, stated in a press release.
In developing WOTUS, the Obama administration followed previous presidential administrations’ bad examples in failing to follow the law, says Daren Bakst, a senior research fellow at The Heritage Foundation.
“For decades, EPA and the Corps have struggled to come up with a definition for WOTUS because they have ignored the law,” Bakst said. “So, what did the Obama administration do? They ignored the law.
“Instead of learning lessons from past errors, the Obama administration compounded those errors, creating a grossly overbroad and vague rule,” said Bakst. “The district court’s opinion thoughtfully addresses one issue that isn’t getting enough attention: that the rule violated the law even under Justice [Anthony] Kennedy’s ‘significant nexus’ test, which itself would cover far too many waters, making this decision a really important victory against the Obama rule.”
The district court’s decision represents a reversal of executive overreach, says Craig Rucker, president of the Committee for a Constructive Tomorrow (CFACT).
“The court’s decision is a setback for the administrative regulatory state,” said Rucker. “Political appointees to the Obama administration arrogated to themselves powers the court now says they never had to begin with.”
‘Greater Regulatory Certainty’
In the aftermath of the district court rulings blocking WOTUS enforcement, the Trump administration completed its plans to scrap the Obama administration’s rule, announcing on September 12 it was returning to standards put in place in 1986 until it could develop alternative water regulations more in line with Supreme Court rulings on the subject.
“Today, EPA and the Department of the Army finalized a rule to repeal the previous administration’s overreach in the federal regulation of U.S. waters and recodify the longstanding and familiar regulatory text that previously existed,” EPA Administrator Andrew Wheeler said in a press release. “Today’s Step 1 action fulfills a key promise of President Trump and sets the stage for Step 2: a new WOTUS definition that will provide greater regulatory certainty for farmers, landowners, home builders, and developers nationwide.”
Joining the states as co-plaintiffs in the District Court lawsuit were business groups and trade associations whose members would be directly affected by the rule, including the American Farm Bureau Federation, American Forest & Paper Association, American Petroleum Institute, American Road and Transportation Builders Association, National Alliance of Forest Owners, National Association of Home Builders, National Association of Manufacturers, National Cattlemen’s Beef Association, National Mining Association, National Pork Producers Council, National Stone, Sand, and Gravel Association, and the Public Lands Council.
Bonner R. Cohen, Ph.D. ([email protected]) is a senior fellow at the National Center for Public Policy Research and a senior policy analyst with CFACT.