Source: Tom Johnston, MEATINGPLACE, 5/31/19


A federal judge in Texas has ruled that the “Waters of the U.S.” rule, or WOTUS, that sought to expand the Environmental Protection Agency’s (EPA) jurisdiction is unlawful and remanded it back to the agency, according to court documents.

U.S. District Judge George C. Hanks also kept in place Texas’ existing injunction on the 2015 rule, pending proceedings on remand. Several other courts have imposed injunctions on WOTUS as well, although Hanks’ is the first ruling on the legitimacy of the law.

Agreeing with the arguments of plaintiffs, including multiple meat industry trade organizations, Hanks said EPA violated rulemaking procedure in failing to allow for public notice and comment on an amendment that was made after the rule was proposed in 2014 and included in the final version made effective in 2015.

“While we are pleased with the decision the court made in agreeing that the 2015 rule was unlawful, we look forward to continuing to work with EPA in developing an appropriate means of determining 'Waters of the U.S.’ EPA has initiated a revised rulemaking, and we will continue our diligent efforts to work with EPA in this process,” said Paul Bredwell, P.E., vice president of environmental programs at U.S. Poultry & Egg Association, in a statement. 

In February of this year, the EPA and the Army Corps of Engineers proposed a new rule defining the scope of waters regulated under the federal Clean Water Act, the comment period for which ended April 15. That followed President Trump’s executive order issued in February 2017 directing the agencies to review the 2015 rule.

The 2015 WOTUS rule, developed by the Obama administration, expanded the definition of the types of waterways that fell under federal jurisdiction. Farmers and livestock groups objected to the regulation as overreach, saying it opened the door to more mandatory permitting, federal enforcement actions and activist lawsuits.

Under the new rule, traditional navigable waters, tributaries to those waters, certain ditches, certain lakes and ponds, impoundments of jurisdictional waters, and wetlands adjacent to jurisdictional waters would be federally regulated.

The rule also spells out what are not “waters of the United States,” including features that only contain water during or in response to rainfall (ephemeral features); groundwater; many ditches, including most roadside or farm ditches; prior converted cropland; storm water control features; and waste treatment systems.

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