Texas joins challenge to Biden ‘WOTUS’ regulations

As a federal back and forth over the regulation of drainage ditches and glorified puddles as “navigable waters” of the U.S. nears resolution in the nation’s highest court, Texas has joined the fray.

Back in January, the State of Texas — including a collection of state agencies — sued the U.S. Environmental Protection Agency (EPA) over the administration’s newly proposed definition for “waters of the United States” (WOTUS).

Under the Clean Water Act (CWA) of 1972, the U.S. government was given regulatory authority to monitor the quality of the nation’s waterways. Over the last two decades, the rule has been used by certain administrations to expand the definition and reach of a “navigable water.”

Both the Obama and Biden administrations have moved on rules expanding that definition. When former president Donald Trump took office, his administration pared back the rule set by his predecessor.

The Texas Attorney General’s Office’s case and others, including one joined by the Texas Farm Bureau, allege the new Biden rule exceeds the regulatory authority Congress granted in the CWA.

Texas Attorney General Ken Paxton said of the rule, “The environmental extremists who wrote this unlawful rule have no interest in respecting our sovereignty or our natural resources.”

“For this Administration, this isn’t about environmental protection — it’s about federal control over states like Texas, and we aren’t going to allow it. This rule is unlikely to survive our efforts to stop it permanently, and it is important that the court prevents the change in definition from going into effect until our case has been decided.”

The EPA contends the power falls within its congressionally-approved authority.

“When Congress passed the Clean Water Act 50 years ago, it recognized that protecting our waters is essential to ensuring healthy communities and a thriving economy,” said EPA Administrator Michael Regan. “Following extensive stakeholder engagement, and building on what we’ve learned from previous rules, EPA is working to deliver a durable definition of WOTUS that safeguards our nation’s waters, strengthens economic opportunity, and protects people’s health while providing greater certainty for farmers, ranchers, and landowners.”

Jay Bragg, an associate director within the Texas Farm Bureau, told The Texan, “The rule is so broad, any place where water collects and flows — even if it’s dry most of the time — could be left to federal government regulation.”

“I don’t know if anyone wouldn’t go out and farm if the rule were enforced, but we wouldn’t want our members to be sued for farming.”

Under the proposal, a suit could be brought by a third party, including any neighbor of someone under the regulatory eye.

But the biggest case to watch is neither Texas’ nor the Texas Farm Bureau’s; it’s the one in the U.S. Supreme Court involving a couple from Idaho.

The court will rule on Sackett v. Environmental Protection Agency this term, a decision that will bring to an end the near-20-year standoff between the EPA and Michael and Chantell Sackett.

The Sacketts purchased a plot of land in 2004 in the Idaho Panhandle. The couple obtained county building permits a few years later and began the process of fitting the land for the construction of a house. The plot sits 300 feet from Priest Lake with a cluster of houses and a road between the lakeshore and the property; it’s also abutted by a drainage ditch.

Shortly after obtaining the permits, the EPA ordered the couple to restore their property and abandon the renovation project lest they face steep financial penalties.

The couple won a first case concerning the same situation a decade ago when the court ruled that the agency abridged its authority in ordering the restoration of the property. But the current case concerns whether the entire batch of oversight stands up to judicial scrutiny.

The Ninth Circuit Court of Appeals ruled that the Sacketts’ property falls within a wetland and is thus subject to the WOTUS provision. The appeals court’s ruling rests on reasoning created by former Justice Anthony Kenedy in a U.S. Supreme Court decision from 2006 in the case Rapanos v. United States.

During that case, Kenedy created the “significant nexus” test — an approach to judge whether a circumstance met the CWA’s standards for regulatory oversight. This expanded the definition of “navigable water” to include “adjacent wetlands,” which the Biden rule seeks to codify. A Trump rule, since rescinded, had reverted the WOTUS definition back to its pre-Rapanos form.

“The Clean Water Act is incredibly draconian statute,” Charles Yates, an attorney with the Pacific Legal Foundation that is representing the Sacketts, told The Texan. “Individuals can face enormous civil penalties and it even includes criminal provisions. We’ve had this kind of game of regulatory ping pong that’s gone on for 15 years where the agencies have just consistently failed to come up with a workable and durable definition.”

Yates said if the Sacketts are successful, it will open the door for other litigation on the law’s application to other water formations like tributaries. If they lose, the federal government will be able to continue preventing the construction of their house on the already-zoned plot of land.

For others, like Texas farmers and ranchers, the rule’s biggest issue is its uncertainty. “The ‘significant nexus’ test is a judgment call by whoever is making the decision at the time,” Bragg said. “That uncertainty is what really bothers our members.”

And rather than wait for the court’s ruling, the Biden administration is moving forward with approval of the rule. If the court rules against the government, it will have to restart any further rulemaking on the issue — which itself is required to take months for public comment and procedural order.

“It boggles the mind,” Yates concluded.

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