GALVESTON, Texas (CN) — Texas and Idaho convinced a federal judge Sunday to block implementation of a new Biden administration rule within their borders that expands what types of waters federal agencies have authority to regulate.
Texas and four of its state agencies sued the U.S. Environmental Protection Agency, U.S. Army Corps of Engineers and their leaders on Jan. 18 in Galveston federal court, claiming a proposed rule, which took effect Monday, amended the definition of “waters of the United States” beyond what Congress intended in the Clean Water Act.
The rule specifies all “interstate waters” – bodies of water that straddle states’ borders – are under the purview of the EPA, which administers the Clean Water Act, and the Army Corps of Engineers, which issues permits for projects subject to the CWA’s jurisdiction.
Texas argued in its lawsuit the rule would erode states’ authority over their own waters and increase state agencies’ regulatory burdens and costs by expanding federal authority to non-navigable water features like ditches, seasonal streams, ponds and isolated wetlands that cross state lines.
The day after Texas sued, a group of 18 national trade associations, led by the American Farm Bureau Federation, brought their own challenge of the rule, also in Galveston federal court.
U.S. District Judge Jeffrey Brown, a Trump appointee who is the only U.S. district court judge assigned civil and criminal cases filed in Galveston, consolidated the lawsuits in mid-February.
Idaho became a plaintiff in an amended version of Texas’ lawsuit filed on Feb. 27.
The term navigable is central to the states’ and trade groups’ challenge.
They claim the CWA’s plain language requires federal permits to discharge pollutants into, or to dredge or fill only “navigable waters.”
“By classifying all ‘interstate waters’—regardless of navigability—as ‘waters of the United States,’ the federal agencies read out the cornerstone of the CWA’s jurisdiction: ‘navigable waters,’” Texas and Idaho state in their lawsuit.
Defending the new rule, Justice Department attorneys noted that federal water regulations enacted in 1952, 1964 and 1970, before the CWA’s passage in 1972, tasked federal agencies with protecting interstate waters regardless of their navigability.
But Judge Brown said in Sunday's ruling that history has nothing to do with the case because the EPA and Army Corps of Engineers’ authority comes only from the CWA.
He found Texas and Idaho have standing based on expenses they said they would incur complying with the rule.
Texas estimated that due to regulatory hurdles imposed by the new rule, its transportation department’s costs for a highway project in Dallas County that has already started would increase from $292,600 to $80.5 million, and the department’s overall costs would jump by $3 million per year.
While Idaho’s predicted harms were much less specific, only that the rule would “increase cost in both monetary and labor hours” for its staff, Brown found that was enough for the Gem State to establish standing.
Brown determined the states and trade groups are likely to prevail on their claims the Biden administration’s revision violates the Administrative Procedure Act and is unconstitutional, namely that it runs afoul of the 10th Amendment, which Idaho and Texas argue “provides states with traditional authority over their own lands and waters.”
“Certainly, the court agrees with the defendants that federally regulating some interstate waters may be necessary to carry out Congress’s intent to protect the nation’s waters, but the court is not convinced that the act’s text supports unrestrained federal jurisdiction over all interstate waters,” the judge wrote in a 34-page order.
Brown declined to issue a nationwide injunction.
He noted that in addition to Texas and Idaho, at least 25 other states have sued to block the rule. Brown wrote the “judicial process will benefit” from other judges giving their own conclusions about the rule, and he did not want to interfere with states that have not challenged the rule and “may actually welcome it.”
Brown said he also agrees with the states the Biden administration erred in how it incorporated a “significant-nexus standard,” articulated by former Supreme Court Justice Anthony Kennedy in his concurring opinion in the 2006 case Rapanos v. United States.
Under Kennedy’s test, federal jurisdiction extends to water that “either alone or in combination with similarly situated lands in the region, significantly affects the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”
Brown says the Biden administration changed the test to expand federal authority to interstate waters.
Bayou City Waterkeeper, a Houston-based environmental group that advocates for protection of wetlands, intervened in the case to defend the rule and is represented by attorneys with Earthjustice, a public interest nonprofit.
They criticized Brown’s order.
“This decision is a setback for the public, which has long depended on the Clean Water Act to safeguard downstream communities and the environment,” senior Earthjustice attorney Stuart Gillespie said in a statement. “We will work closely with our partners to ensure the law and science prevail, and that our communities receive the protections afforded by the Clean Water Act.”
Brown and other federal judges across the country weighing challenges to the new rule will soon get some guidance from the U.S. Supreme Court.
The justices heard arguments in October in a 16-year-old dispute in which an Idaho couple sued the EPA after it ordered them to stop construction of their home or face fines of up to $40,000 per day, and informed them their property might be subject to CWA jurisdiction because it contains wetlands. A federal judge ruled in the EPA’s favor and the Ninth Circuit affirmed.
The high court is expected to rule on the case by June and to decide whether the Ninth Circuit’s use of Kennedy’s significant-nexus test was the proper method for determining waters of the United States.
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