U.S. District Court Finds WOTUS 2015 Unlawful
September 4, 2019
Consistent with the views and statements in the numerous comments NMPF has filed with the EPA, on August 22, the U.S. District Court for the Southern District of Georgia found that the promulgation of the 2015 Waters of the United States (WOTUS) rule was procedurally and substantively unlawful. Procedurally, it violated the Administrative Procedures Act because it went beyond the parameters of the proposed rule. Substantively, the 2015 rule resulted in an “impermissible, significant intrusion on traditional state authority” because of its vast expansion of jurisdiction over what would otherwise be within a state’s jurisdiction. Further, the court held that certain provisions were “arbitrary and capricious.”
The court has chosen to remand the rule to EPA for further proceedings. EPA has already proposed to vacate the rule and proposed a new rule to replace both the 2015 and the 1986 rules. NMPF has filed several comments to the repeal and the replace rule. Those comments can be found here and here. EPA has stated that it hopes to complete the repeal rulemaking this fall and the replacement rulemaking late this year or in early 2020. Until the rulemaking is complete, the U.S. will continue to have two WOTUS rules in effect (2015 and 1986). The 2015 rule is enjoined in 28 states and in effect in 22 states – where enjoined, the 1986 rule applies.