From Legal Insurrection

Posted by Leslie Eastman Saturday, August 24, 2019 at 7:30pm

“…vast expansion of jurisdiction over waters and land traditionally within the states’ regulatory authority cannot stand…”

Back in 2015, we covered the Obama administration’s far-reaching Waters of the United States (WOTUS) Rule and the pushback it received at the time.  States’ suits are making their way through the courts, and there is good news to report!

U.S. District Judge Lisa Godbey Wood has handed a victory to the state of Georgia and nine other states that sued the federal government (and to the rest of the nation) by declaring that the  WOTUS Rule is unlawful.

Wood stated that the rule, which was intended to provide better protection of the nation’s water, violated the Clean Water Act and the Administrative Procedure Act, and she remanded it back to the Environmental Protection Agency and the Army Corps of Engineers for further work.

She wrote that while the agencies have authority to interpret the phrase “waters of the United States,” that authority isn’t limitless, and therefore their decisions in doing so do not fall under what’s called Chevron deference, a matter of case law in which — for lack of a better phrase — the tie goes to the agency.

Legal Insurrection readers may recall that implementation of the rule led to a Wyoming farmer being fined $37,500 a day for constructing a stock pond on his own property.

The American Farm Bureau Federation, which earlier this year won a decision in Texas that also found the rule legally wanting, praised Wood’s 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.”

Read the full story here.