Houston Chronicle by Perla Trevizo May 29, 2019
A federal judge in Galveston has sent an Obama-era regulation that expanded jurisdiction over waterways back to the Trump administration for review, a move some environmentalists fear could weaken protections for Texans’ drinking water.
While U.S. District Judge George Hanks Jr. did not rule on the merits and didn’t vacate the so-called Clean Water Act change, he wrote that the Environmental Protection Agency and the Army Corps of Engineers under Obama failed to allow the public to comment after making significant changes to the final rule.
In 2015, seeking to put an end to a decades-long debate over which wetlands and waterways were covered by the Clean Water Act, the EPA issued a new rule that expanded federal jurisdiction over tributaries.
Several suits ensued, including one by Texas, Mississippi and Louisiana along with a coalition of farm and industry groups, calling it a federal overreach and overly broad.
The Obama rule is still in effect in 22 states and blocked by legal decision in 28 others, including Texas. And under Hanks’ decision Tuesday, a preliminary injunction issued on Sept. 12, 2018 remains in place. A federal judge in South Caroline last year prevented the Trump administration from delaying the regulation nationwide as it worked on its own version.
The judge’s ruling instead focused on differences between the proposed rule and the final regulation; he found the changes resulted in what a violation of the Administrative Procedure Act by not giving the public a meaningful opportunity to comment.
The rule as originally proposed defined “adjacent waters†on ecologic and hydrologic criteria. When the final rule was published, it was based on distances, such as 100 feet of the ordinary high water mark of waterways covered under the Clean Water Act, or all waters located within the 100-year floodplain of a “categorically covered water.â€
That, Hanks found, was different enough to warrant another public notice and comment period.
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