2020 Environmental Real Estate IssuesA federal district (trial level) court in Texas ruled the United States Army Corps of Engineers and EPA (the Agencies) did not follow administrative procedures in issuing the 2015 rule defining “waters of the United States” (WOTUS). The Court remanded the rule to the Agencies, directing them to follow proper rule-making procedures.

CWA Does Not Define WOTUS
The Clean Water Act (CWA) regulates, but does not define, WOTUS. A rule issued in 1986 provided a definition, which nearly all interested parties found difficult to apply. Many persons argued the 1986 rule, either on its terms or in the way enforced, exceeded the CWA’s scope.  Disputes over WOTUS under the 1986 rule even reached the US Supreme Court.

In 2015, the Agencies issued a new rule, which has been challenged in numerous courts.  This challenge was brought in Texas by the states of Texas, Louisiana, and Mississippi, as well as several private parties, who asserted the 2015 rule violated the Administrative Procedure Act, the CWA, and limits imposed by the US Constitution.

No Public Comment on Final WOTUS Rule
Virtually all rules issued by federal agencies must be subject to public comment before becoming final. The Court ruled the Agencies did not follow required administrative procedure because the final 2015 WOTUS rule differed substantially from the proposed rule, but the Agencies did not seek a new round of public comment on the language in the final rule. As a result, the Court enjoined the 2015 rule; remanded the rule; and continued in place a preliminary injunction, issued in September 2018, pending further procedures before the Agencies. The Court’s ruling means the 1986 rule, as interpreted by applicable case law, remains in effect for those states subject to the ruling.

Injunction Limited to Three States
While those challenging the rule requested a nationwide injunction, the Court limited the injunction to the states making this particular challenge, in part because the Agencies have already begun considering changes to the 2015 WOTUS rule.

The 2015 rule came during the Obama administration. I expect the Agencies under the current administration will eventually propose a much different WOTUS rule.