There is no rest for the wicked, or at risk of being repetitive, an EPA attorney.
Fresh off a spanking from the Supreme Court for not taking the costs of imposing new, expensive pollution mandates on coal-burning power plants, the EPA’s legal team is being called to defend a change to the Clean Water Act.
The EPA swears it isn’t true, but Texas Attorney General Ken Paxton (R) claims the way Environmental Protection Agency bureaucrats define “navigable waters” under the Clean Water Act, known more officially as the “Waters of the United States” rule, means everything from ditches and dry creek beds to gullies and isolated ponds formed after a big rain could be considered a “water of the United States.”
And any puddle declared to be a “water of the United States” under the new rule published June 29 could be regulated under the Clean Water Act.
The new rule would expand the EPA’s authority to cover an additional two million acres of streams and 20 million acres of wetlands that are not included, or at least clearly included, under the Clean Water Act.
Texas and 15 other states filed suit to block the new “navigable waters” rule as soon as it was published.
The EPA legal eagles have not one lawsuit to worry about, but two. Texas, Louisiana, and Mississippi have filed suit in Houston. Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, New Mexico, Nevada, North Dakota, South Dakota, and Wyoming have filed suit in a separate case to have the rule overturned.
“The EPA’s new water rule is not about clean water — it’s about power,” Paxton said. “This sweeping new rule is a blatant overstep of federal authority and could have a devastating effect on virtually any property owner, from farmers to ranchers to small businesses.”
Paxton said the rule violates the U.S. Constitution, federal law and U.S. Supreme Court precedent, and places costly burdens on landowners in Texas.
“If it moves forward, essentially anybody with a ditch on their property would be at risk of costly and unprecedented new regulations and a complicated web of bureaucracy. Texans shouldn’t need permission from the federal government to use their own land, and the EPA’s attempt to erode private property rights must be put to a stop,” Paxton said.
EPA Administrator Gina McCarthy said Paxton and the other state attorneys general who sued are quite simply wrong.
McCarthy said the new rule is actually a good thing for businesses and landowners because it ensures that waters protected under the Clean Water Act are more precisely defined and predictably determined, making permitting less costly, easier, and faster.
She also said the rule is grounded in law and the latest science, and is shaped by public input.
“Protecting our water sources is a critical component of adapting to climate change impacts like drought, sea level rise, stronger storms, and warmer temperatures,” said McCarthy, “which is why EPA and the Army have finalized the Clean Water Rule to protect these important waters, so we can strengthen our economy and provide certainty to American businesses.”
McCarthy also disputed the allegation that ditches, gullies and rainwater ponds and puddles would now fall under the auspices of the EPA.
She said the new rule clearly defines and protects tributaries that impact the health of downstream waters and the rule says that a tributary must show physical features of flowing water — a bed, bank, and ordinary high water mark — to warrant protection.
McCarthy maintained the rule focuses on streams, not ditches, and the rule limits protection to ditches that are constructed out of streams or function like streams and can carry pollution downstream. So ditches that are not constructed in streams and that flow only when it rains are not covered.
Arkansas Attorney General Leslie Rutledge (R) doesn’t believe McCarthy.
“From the beginning, I have explained that this rule from the EPA and the (Army) Corps goes beyond the intent of Congress under the Clean Water Act and will negatively impact Arkansas’s agriculture community, a community that accounts for one in every six jobs across the state,” said Rutledge.
“I am confident that the courts will once again affirm that local oversight and local control is the best way to protect our waters.”
Louisiana Attorney General James “Buddy” Caldwell (R) joined the other attorneys general who argue in the suit that the rule violates the Commerce Clause of the Constitution and the federal Administrative Procedures Act, and that the rule infringes upon states’ sovereignty rights granted under the 10th Amendment.
“Our farm ponds and drainage ditches, even our backyards, could be subject to costly and burdensome federal regulation under this absurd rule set forth by the EPA,” Caldwell said. “We are confident that the courts will recognize this as an illegal power grab and will prevent the federal government from intervening in state matters. This rule would require the states to spend our scarce tax dollars regulating dry creek beds, for example.”
Colorado Attorney General Cynthia Coffman (R) said her state, often seen as one of the more environmentally aware of the 50 states, knows well how important water is as a resource.
She also said, thank you very much, but Colorado does not need the EPA’s help in keeping its water clean.
“Water is perhaps the most critical resource Colorado manages and we do it very well,” said Coffman. “EPA’s rule creates more confusion than clarity and unreasonably expands the federal government’s regulatory reach into our backyards, our farmers’ crop land, and our ranchers’ acreage.”
Judicial recourse is not the only hope of the 16 attorneys general who want to block this new EPA rule.
The Senate Environment and Public Works Committee voted to block the new rule more than two weeks before it was officially announced.
“This bipartisan legislation would stop the final rule and make the EPA and the Corps of Engineers go back and redo it,” Committee Chairman Jim Inhofe (R-Okla.) said. “This time, they cannot avoid consultation with states and local governments, they will have to do a full economic analysis, including an unfunded mandates analysis, they will have to review the impacts on small businesses and small local government.”
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