Another federal court has found the 2015 “waters of the U.S.” rule legally deficient, but language in the ruling could add another layer of controversy to the Trump administration's efforts to rewrite the rule. 

U.S. District Judge Lisa Godbey Wood in Georgia said in a ruling Wednesday the Environmental Protection Agency and Army Corps of Engineers overreached in defining their jurisdiction under the Clean Water Act, specifically in asserting federal authority over activities in interstate waters, tributaries and adjacent waters.

Wood did not invalidate the rule but kept an injunction in place preventing its implementation in 11 states. Along with other court rulings, that means the 2015 rule is in place in 23 states and not in effect in 26, with the situation in New Mexico complicated by that state's shift in litigation position earlier this year.

The American Farm Bureau Federation, which earlier this year won a decision in Texas that also found the rule legally wanting, hailed the latest decision.

“The court ruling is clear affirmation of exactly what we have been saying for the past five years,” AFBF General Counsel Ellen Steen said. “The EPA badly misread Supreme Court precedent. It encroached on the traditional powers of the states and simply ignored basic principles of the Administrative Procedure Act when it issued this unlawful regulation.”

Wood found the WOTUS rule’s “vast expansion of jurisdiction over waters and land traditionally within the states’ regulatory authority cannot stand absent a clear statement from Congress in the CWA. Since no such statement has been made, the WOTUS Rule is unlawful under the CWA.”

She also determined the agencies’ “inclusion of all interstate waters in the definition of ‘waters of the United States,’ regardless of navigability, extends [their] jurisdiction beyond the scope of the CWA because it reads the term navigability out of the CWA.”

The judge used the “significant nexus” test developed by former Supreme Court Justice Anthony Kennedy in the Rapanos decision to analyze the legality of the WOTUS rule. Kennedy had said in enacting the CWA, Congress “intended to regulate at least some waters that are not navigable in the traditional sense” but also said “the word ‘navigable’ must be given some effect.”

National Wildlife Federation attorney Jim Murphy said the judge’s adoption of the Kennedy test is a good sign for opponents of the EPA/Corps rewrite effort. EPA and the Corps proposed a new rule in December using the Rapanos plurality opinion written by late Justice Antonin Scalia as a starting point as directed by President Donald Trump in an executive order in February 2018.

The Wood decision “reiterates that they’re barking up the wrong tree in terms of their replacement rule. No court has given credence to the Scalia opinion as having controlling authority.”

Wood said the way the agencies defined “tributaries” in the rule would allow even “remote and insubstantial” waters to be jurisdictional. She added that the definition of waters “adjacent” to tributaries also was unlawful, “both because of its combination with tributaries and the selection of overboard geographic limits without showing a significant nexus.”

AFBF senior regulatory director Don Parrish, the organization’s point man on the WOTUS rule, was ecstatic about the ruling, saying it went much further than a Texas ruling earlier this year.

“It does give [the agencies] a roadmap on reasons to repeal” the 2015 rule, he said. EPA and the Corps are working to finish a new final rule by the end of the year.

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