Water of the United States?

By Noah Hearn, a 2019 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering his third year at Texas Tech University School of Law in the fall.

By requiring federal agencies to propose their rules to the public and mandating a method by which the public can express their concerns, the Administrative Procedure Act holds the “fourth branch” of government to a degree of public accountability that would simply not exist otherwise.  On May 28, 2019, United States District Court for the Southern District of Texas Judge George C. Hanks, Jr. recognized this procedural structure by extending an injunction against the enforcement of an EPA rule defining the Clean Water Act’s definition of “waters of the United States.”


The United States Constitution established only three branches of government: Legislative, Executive, and Judicial. However, as the U.S. grew in both complexity and size, Congress encountered a series of challenges arising from the detail-oriented job of legislating.  Federal administrative agencies presented a solution to this dilemma.  Congress created such agencies to develop regulations that effectuate a broader purpose outlined by the legislature.  Thus, those at the helm of agencies wield considerable influence over the daily lives of American citizens—notwithstanding the fact that they are unelected.  In truth, these administrative agencies are needed in order to govern both effectively and efficiently; but these ideals must be balanced against the need to hold powerful regulators accountable.

Congress’s passage of the Administrative Procedure Act (“APA”) in 1946 constituted an attempt to breathe public oversight into an otherwise undemocratic process.  The APA requires that agencies provide sufficient notice to interested parties on proposed regulations.  This obligation is satisfied when agencies publish proposed rules in the Federal Register and provide the public with a reasonable amount of time to provide feedback or “comment” on those proposed rules.  This process is designed to equip those most likely to be affected by regulatory change with an opportunity to participate in the rulemaking.

Texas v. EPA

This notice-and-comment process is straightforward, and its justification is sound; nevertheless, agencies comply grudgingly and often seek to navigate around their APA responsibilities.  The events underlying State of Texas, et al. v. United States Environmental Protection Agency, et al. provide a timely and compelling example of a federal agency’s circumvention of the APA rulemaking process to reach a desired result.  With the clock ticking on the Obama Presidency, the Environmental Protection Agency (“EPA”) conducted the regulatory equivalent of a “bait-and-switch,” proposing to adopt a Clean Water Act (CWA or Act) regulation and then abandoning the proposal in favor of an entirely different set of rules.

Congress passed the CWA in 1972 with the intention of “restor[ing] and maintain[ing] the chemical, physical, and biological integrity of the Nation’s waters.”  The Act made it “unlawful” to “discharge. . . any pollutant” into “navigable waters”; however, the precise scope of the statutory language “navigable waters” has since become the subject of hot debate.

The CWA defines navigable waters as “the waters of the United States, including territorial seas,” but this broad definition provides little, if any, technical guidance to individuals and corporations alike.  The two regulatory agencies charged with administering the CWA—the EPA and the U.S. Army Corps of Engineers—have consistently failed to clearly define “waters of the United States” (WOTUS).  This decades-old struggle came to a head in 2014 when the agencies proposed a rule that would split “waters of the United States” into three separate categories: (1) categorically covered, (2) categorically excluded, and (3) case specific. Under this proposed rule, the agencies would have jurisdiction over all waters adjacent to categorically covered waters.  Meanwhile, “adjacent” was to be defined as “bordering, contiguous or neighboring.”

As required by the APA, the proposed rule was published in the Federal Register and a three-month comment period commenced.  However, after the comment period ended the agencies issued a “Revised Connectivity Report” and—citing the report’s findings—proceeded to fundamentally alter the proposed rule before releasing the final version.  The new rule would instead define “adjacent waters” by using distance-based criteria rather than the ecologic and hydrologic criteria featured in the proposed rule.  EPA promulgated this Final Rule notwithstanding the fact that its features had never before been tested by a rigorous notice-and-comment process.

After recognizing how the agencies shamelessly executed an end run around the public’s right to comment, Texas, Louisiana, and Mississippi brought suit in Texas v. U.S. EPA and prevailed.  In his opinion, Judge Hanks explains that the EPA “depriv[ed] plaintiffs of a meaningful ‘opportunity to comment’ and possibly deconstruct the Final Connectivity Report,” an action which “violated the [APA].”  This is because the public was never given the chance to comment on the over-300-page Connectivity Report, which examined the effect of wetlands and small streams on downstream water quality. Instead, the agencies simply proposed one rule before proceeding to pass an entirely different one—a classic bait-and-switch.


This case is more than simply another nail in the coffin of WOTUS’s definition; indeed, it also serves as an unambiguous rebuke of agencies who defy the APA.  Here, Judge Hanks correctly held that interested parties should not be forced to “parse through . . . vague references like tea leaves to discern an agency’s regulatory intent,” or otherwise risk being blindsided by a final rule that is not a logical outgrowth of the proposed rule.  Put simply, agencies cannot opt out of transparency regardless of how time consuming notice and comment may be.  The APA contains no exception for political expediency, nor does it bless the concealment of regulatory intentions until the last possible juncture like some kind of Trojan horse.