Monday, September 07, 2015

EPA Water Rule Applies to Texas After All

By Jim Malewitz

Editor's note: This story has been updated to include comment from Attorney General Ken Paxton.

The Obama administration’s controversial new clean water regulations apply in Texas after all.

Clarifying an injunction he issued last week, a federal judge in North Dakota says he blocked the federal Waters of the U.S. rule — aimed at better defining the scope of bodies of water protected under the federal Clean Water Act — from taking effect in only 13 states suing in his court.

Texas is not one of them.

It’s a setback for Attorney General Ken Paxton, who cheered the injunction last week, arguing that it applied nationwide.

"We will continue to fight the EPA’s blatant overreach in our own case and will work to protect the state and private property owners from this latest and potentially most invasive attempt by the Obama administration to control our lives and livelihoods,” Paxton said in a statement Friday.

Friday’s ruling from U.S. District Judge Ralph Erickson clears up one muddy legal question about the rule, which allows the federal government to regulate small streams and wetlands.

The confusion started Thursday of last week. Hours before the regulation was set to take effect, Erickson granted a request from a group of 13 states to block it, ruling that "the risk of irreparable harm to the states is both imminent and likely" if the regulation took effect as a legal challenge winds through the courts.

Ranchers, property rights advocates and Republican critics of the Obama administration proclaimed victory, with Paxton saying the ruling prevented "a dangerous and ill-conceived set of regulations from taking effect."

But the EPA said it would still enforce the regulation in the 37 states not named in that suit.

Paxton disagreed. "The injunction applies nationwide and therefore the rule is not enforceable in Texas,” the Republican said last week.

On Friday, Erickson put that claim to rest. Though he had the power to extend his decision nationwide, he wrote in an order, he chose not to do so.

“Because there are competing sovereign interests and competing judicial rulings, the court declines to extend the preliminary injunction at issue beyond the entities actually before it,” Erickson wrote.

Texas and other states have also sued over the rule, which the farm lobby and Republicans paint as an attack on private property rights. The Texas suit — filed along with Louisiana and Mississippi — has been on hold since mid-August. A district judge granted a stay in the case, pending a ruling on whether the EPA can consolidate the lawsuits it faces.

“We’re happy to see that the federal court in North Dakota has confirmed what we already knew: the Waters of the U.S. rule is in full effect in Texas,” Sara Smith, an attorney with the group Environment Texas, said Friday in a statement. “This means loopholes in the Clean Water Act that threatened more than 143,000 miles of Texas’ streams and the drinking water for 11.5 million Texans are finally closed.”

The 13 states exempt from the rule are: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.

The EPA rule has sparked loud protests and plenty of questions.

Much of the concern stems from a dispute over whether or not it actually enlarges the EPA's jurisdiction. The 1972 federal Clean Water Act made it illegal to pollute "navigable waters of the United States." The rule is supposed to clarify what could be defined as a "navigable water."

The EPA always believed its jurisdiction stretched beyond traditional navigable waters, like rivers and seas, to the smaller bodies of water and wetlands that can affect them, but it didn’t have a strong legal basis to prove it. The updated definition clarifies this authority, leaving ranchers and industry officials to wonder whether they will have to check with the government before using their own land.

According to the EPA, their purview only includes 60 percent of all streams — plus millions of acres of wetlands — and it barely expands the agency’s jurisdiction. Paxton has countered the change means "virtually every river, stream and creek in the U.S. will come under the oversight of bureaucrats from the EPA."

Disclosure: Environment Texas was a corporate sponsor of The Texas Tribune in 2013. A complete list of Tribune donors and sponsors can be viewed here.

This article originally appeared in The Texas Tribune.

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