OPINION: This article may contain commentary which reflects the author's opinion.
U.S. District Judge Jeffrey Brown, a Trump appointee, delivered a “big victory” to Attorney General Ken Paxton and the state by ruling President Joe Biden’s administration overstepped its broad authority under the “Clean Water Act.”
In January, Paxton filed a complaint against the Environmental Protection Agency, the U.S. Army Corps of Engineers, and the Biden administration’s revision of the “waters of the United States” rule.
“The Clean Water Act (“CWA”) requires federal permits to discharge pollutants into ‘navigable waters’,” the lawsuit states. “‘Navigable waters,’ in turn, is defined to mean ‘the waters of the United States, including the territorial seas.’ Waters that do not fit into this definition are not within federal jurisdiction and may still be regulated by states and tribes.”
“By this challenge, the Plaintiffs assert that by amending the definition of ‘waters of the United States,’ as provided in the Final Rule, the Federal Agencies unconstitutionally and impermissibly expand their own authority beyond Congress’s delegation in the CWA— intruding into state sovereignty and the liberties of the states and their citizens,” the lawsuit continues. “The Final Rule also lacks clarity, leaving those wishing to identify the ambit of federal power over dry land or minor water features at the mercy of an expensive, vague, and arbitrary analysis, lest they face a staggering criminal or civil penalty.”
Paxton cited a Supreme Court decision in Rapanos v. United States, which rejected the US Army Corps of Engineers’ “assertion of expanded authority over non-navigable, intrastate waters that are not significantly connected to navigable, interstate waters.”
Big victory against Biden: Last night a federal court blocked the Admin’s radical “waters of the US” rule, which imposes a leftist environmental agenda on Texas, crushing new regs, and oppressive economic costs. I will always fight to keep Biden’s boots off the necks of Texans! pic.twitter.com/zp2Wv17bhC
— Attorney General Ken Paxton (@KenPaxtonTX) March 20, 2023
Some on the Left were not happy about the ruling in Texas.
“This decision is a setback for the public, which has long depended on the Clean Water Act to safeguard downstream communities and the environment,” said Stuart Gillespie, senior attorney with Earthjustice. “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.”
“For far too long, wetland loss has been our region’s reality,” said Dr. John Jacob, Advisory Council member of Bayou City Waterkeeper. “To the untrained eye, it may not be clear how critical it is to save wetlands and waterways, which give the Houston region enormous benefits in terms of flood protection and improving water quality.”
“Wetlands have an obvious relationship with our intricate network of bayous, creeks, rivers, and bays in Texas,” said Kristen Schlemmer, legal director for Bayou City Waterkeeper. “Our wetlands deserve protection. By attacking the rule, while refusing to adopt any wetland protections of its own, the State of Texas shows its disregard for the communities of our region who rely on these natural features for cleaner water, flood protection, and natural carbon storage.”
“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 S. 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.”
“This final rule recognizes the essential role of the nation’s water resources in communities across the nation,” said Assistant Secretary of the Army for Civil Works Michael L. Connor.“The rule’s clear and supportable definition of waters of the United States will allow for more efficient and effective implementation and provide the clarity long desired by farmers, industry, environmental organizations, and other stakeholders.”
In February, Paxton disagreed with those assertions and urged the federal court to issue a preliminary injunction, arguing that the Clean Waters Act was being exploited to exert “federal control over states like Texas.”
“The environmental extremists who wrote this unlawful rule have no interest in respecting our sovereignty or our natural resources,” said Attorney General Paxton. “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.”