389 F. Supp. 3d 497
S.D. Tex.2019Background
- In 2015 the Army Corps and EPA promulgated the "Clean Water Rule" defining "waters of the United States" (WOTUS) to clarify the geographic scope of the Clean Water Act. The Final Rule changed the definition of "adjacent waters" from hydrologic/ecologic criteria (as in the 2014 Proposed Rule) to precise distance-based metrics (e.g., 100 feet, 1,500 feet).
- The Proposed Rule (2014) relied on a Draft Connectivity Report and defined "neighboring" by hydrologic connection and ecological influence; the Final Rule (2015) relied on a Final Connectivity Report and implemented numeric proximity thresholds.
- Plaintiffs (states and industry groups) challenged the Final Rule under the Administrative Procedure Act (APA) and on constitutional and statutory grounds; they sought vacatur. The court resolved the case on APA procedural grounds only.
- The court held that the Final Rule violated the APA because (1) the distance-based adjacency definition was not a "logical outgrowth" of the Proposed Rule, depriving interested parties of fair notice and meaningful opportunity to comment, and (2) the Agencies failed to reopen comment after issuing the Final Connectivity Report—the technical basis for the Final Rule.
- Remedy: the court granted summary judgment to Plaintiffs, remanded the Final Rule to the Agencies for further proceedings consistent with the opinion, and left its preliminary injunction in place pending remand. The court declined to rule on substantive or constitutional challenges as premature.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Final Rule complied with APA notice-and-comment because adjacency definition was a logical outgrowth of the Proposed Rule | The switch to numeric distance-based adjacency was a new, unforeseeable rulemaking change; parties lacked fair notice and opportunity to comment | The Proposed Rule's hydrologic/ecologic "reasonable proximity" language implied consideration of proximity limits; commenters should have anticipated geography limits | Held for Plaintiffs: numeric distance-based adjacency was not a logical outgrowth; APA violation |
| Whether Agencies violated APA by not reopening comment after publishing Final Connectivity Report relied on as technical basis | Agencies used the Final Connectivity Report as the critical technical basis; failing to reopen deprived parties of meaningful opportunity to rebut evidence | Agencies argued prior comment periods and general solicitation of information sufficed | Held for Plaintiffs: failing to allow comment on Final Connectivity Report violated the APA |
| Appropriate remedy for procedural APA violations | Plaintiffs sought vacatur of the Final Rule | Defendants urged remand without vacatur or other relief | Court remanded the rule to Agencies for further proceedings; declined vacatur as unduly disruptive |
| Whether court should resolve substantive statutory and constitutional challenges now | Plaintiffs urged full relief on statutory, Commerce Clause, and Tenth Amendment claims | Defendants urged court to address all raised claims | Court declined to reach substantive claims as premature, reserving them for post-remand record development |
Key Cases Cited
- Nat'l Ass'n of Mfrs. v. Dep't of Defense, 138 S. Ct. 617 (2018) (Clean Water Act scope and significance of WOTUS definition)
- Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007) (final rule must be a "logical outgrowth" of proposed rule)
- Rapanos v. United States, 547 U.S. 715 (2006) (Supreme Court guidance on jurisdictional scope of the Clean Water Act)
- Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Eng'rs, 531 U.S. 159 (2001) (limits on Corps' jurisdiction under CWA)
- Small Refiner Lead Phase-Down Task Force v. United States Envtl. Prot. Agency, 705 F.2d 506 (D.C. Cir. 1983) (final rule may differ but not deviate so sharply as to deprive notice)
- Owner-Operator Indep. Drivers Ass'n v. Fed. Motor Carrier Safety Admin., 494 F.3d 188 (2007) (agency error where technical basis not revealed in time for meaningful comment)
- Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227 (2008) (studies relied upon by agency must be available for comment)
- O'Reilly v. U.S. Army Corps of Eng'rs, 477 F.3d 225 (5th Cir. 2007) (remand is generally the appropriate remedy for defective agency rulemaking)