October 30, 2019

In Brief

John R. Jacus

Clean Water Act, WOTUS Rule

Georgia v. Wheeler, No. 2:15-CV-00079, 2019 WL 3949922, 2019 U.S. Dist. LEXIS 142152 (S.D. Ga. Aug. 21, 2019).
The U.S. District Court for the Southern District of Georgia issued a decision on the merits regarding multiple pending state and private party challenges to the U.S. Environmental Protection Agency’s (EPA) and the U.S. Army Corps of Engineers’ (Corps) Waters of the United States, or WOTUS Rule. The court held that EPA and the Corps exceeded their jurisdiction under the Clean Water Act (CWA) and violated procedures required by the Administrative Procedure Act (APA) through their promulgation of the WOTUS Rule. The court held that under Justice Kennedy’s concurring opinion in Rapanos v. U.S., 547 U.S. 715, 779 (2006), there had to be some nexus to a traditional navigable water, but the Rule’s definition of interstate waters was so broad that it effectively read the term “navigable” out of the statute. Thus, the agencies had exceeded their authority under the CWA by asserting jurisdiction over waters that had no significant nexus to navigable-in-fact waters. Additionally, the Rule defined “tributary” too broadly by allowing the agencies to designate areas as tributaries based on computer technology, statistics, and historical data that identified the past presence of a streambed, banks, and highwater mark. The court reasoned that the agencies’ sanctioned use of such tools could not guarantee that the streams they purported to regulate would have any actual nexus to a primary water or a tributary thereof. Likewise, the portion of the Rule designating adjacent waters as jurisdictional on the basis of their proximity to waters within the 100-year floodplain of a tributary was impermissibly broad because it did not ensure that adjacent waters would be limited to those with a significant nexus to a traditional navigable water. Finally, the agencies violated the APA because portions of the Rule were arbitrary and capricious, and the final Rule was not the logical outgrowth of the Proposed Rule. For example, the parties could not have anticipated the distance limits for adjacent and case-by-case waters in the final Rule or the final Rule’s exemption for farmland in proximity to adjacent waters.

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