May 29, 2019 - National Mining Association (NMA) President and CEO Hal Quinn issued this statement following the ruling by the United States District Court Southern District of Texas Galveston Division that the 2015 Waters of the United States (WOTUS) rule was unlawful:
“This ruling affirms the appropriate action already underway at the EPA to correct a deeply problematic regulation that impermissibly expanded federal jurisdiction to virtually any standing body of water — from roadside drainage ditches to groundwater to local recycling facilities.
“While the purpose of the 2015 rulemaking was to provide much-needed clarity as to which waters are federally regulated, its impact was the opposite, calling into question the status of areas never before subject to federal jurisdiction.
“We look forward to continuing to work with the administration as it replaces the WOTUS rule with environmentally responsible policies that provide regulatory clarity for businesses and proper recognition of state authority to manage water quality as Congress intended.”
In his ruling, Judge George C. Hanks Jr. agreed with the arguments made by NMA and other plaintiffs that the final rule differed so substantively from the proposed rule that stakeholders were deprived of the opportunity to comment on two substantial changes.
First, the court held that no notice was given regarding change in definition of “adjacent waters.” Specifically, the court found the change to distance-based criteria from the ecologic and hydrologic criteria violated the Administrative Procedure Act’s (APA) notice-and-comment requirements by deviating from the proposed rule in a way that interested parties could not have reasonably anticipated. Second, the court held that the agency finalized the rule without allowing comment on the final connectivity report, the most critical factual material used to support the final rule. Ultimately, the court concluded that “the APA does not envision requiring interested parties to parse through vague references like tea leaves to discern an agency’s regulatory intent regarding such significant changes to a final rule.”
Because the court found that the rule violated the notice-and-comment requirements of the APA, it did not address other substantive challenges to the rule. The court remanded the 2015 rule to the U.S. Environmental Protection Agency and the Army Corps of Engineers while maintaining the preliminary injunction against the rule that it first imposed in 2018.