Court: EPA Failed to Let Public Weigh in on Waters of the United States Rule

The U.S. District Court for the Southern District of Texas has remanded the controversial ‘waters of the United States’ rule back to the Environmental Protection Agency to reconsider due to the lack of public input on the final rule. CEI attorney Devin Watkins agrees with the court on the rule’s major shortcoming but says the court should have gone further and voided the rule entirely.

“We commend the court for properly recognizing that the EPA illegally failed to get public input on its final ‘waters of the United States’ rule. The agency could not change the proposed rule from requiring the presence of a ‘hydrologic connection’ to an explicit ‘within 100-feet of the high water mark’ without allowing any public input.

“However, the problem with the court’s ruling is that it should have vacated the rule rather than remand it back to the agency. The APA states ‘the reviewing court shall… hold unlawful and set aside agency action… found to be… without observance of procedure required by law.’ Although the court left in place the injunction prohibiting enforcement of the rule in Texas, Louisiana, and Mississippi, many of the people outside of these three states deserve the protection of the law that the court denied to them today by not vacating this rule until a proper rule is issued.

“This is important because millions of Americans who just wish to use their land as they always have are being told they must first get permission from the federal government due to the expanded ‘Waters of the United States’ definition set by the Obama administration without public comment.”

Related analysis: Reforming ‘Waters of the United States’ Critical for Economic Growth