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May 30, 2019 DTN/The Progressive Farmer reports: The 2015 waters of the United States, or WOTUS, rule may have suffered a final defeat, as a Texas court Tuesday granted a motion for summary judgement to the American Farm Bureau Federation that sends the rule back to EPA. The U.S. District Court for the Southern District of Texas ruled EPA violated the law in making changes in the final rule that were not proposed in the preliminary rule. "The court finds that the final rule violated the notice-and-comment requirements of the APA (Administrative Procedure Act) and therefore grants summary judgment in favor of the plaintiffs on this ground," the court said in its ruling. "The court remands the final rule to the appropriate administrative agencies for proceedings consistent with this order." In drafting the 2015 rule, EPA relied heavily on a so-called draft connectivity report that included the agency's analysis of numerous studies on the connected nature of the nation's waters. After an EPA scientific advisory board issued comments on the draft connectivity report on Oct. 24, 2014, the agency re-opened the public comment period on the rule for one month. "However, the agencies declined to do the same after issuing the revised version of the connectivity report on Jan. 15, 2015," the court said in its ruling. "This meant that the proposed rule was never open for public comment after the final connectivity report was finalized. Almost six months after publishing the final connectivity report, the agencies released the final rule on June 29, 2015, which proposed a different definition of the phrase WOTUS." In particular, EPA's final rule departed from the proposed rule in a key aspect. The final rule defined adjacent waters using distance-based criteria rather than the ecologic and hydrologic criteria used in the proposed rule. For example, the final rule changed the term "neighboring" to mean "all waters located within 100 feet of the ordinary high water mark" of a jurisdictional water. Tweet |
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