The Texas Tribune reports on the latest chapter of the never ending conflict between the government of Texas and the United States Environmental Protection Agency. More specifically, its between the business interests within the state of Texas which focus on extracting and processing natural resources and heavily influence that activities of the state government and the environmental forces that look to minimize the side effects of those processes and are represented on the national level.
It's classic federalism.
- Click here for the article: Judge Casts EPA Rule into Muddy Legal Waters.
After a setback in court Thursday, can the federal government enforce its controversial "Waters of the U.S." rule in Texas?
The U.S. Environmental Protection Agency says yes. Texas says no.
The agency on Friday said the regulation, aimed at better defining the scope of bodies of water protected under the federal Clean Water Act, took effect in Texas and several other states, rankling Texas Attorney General Ken Paxton.
The confusion started Thursday. Hours before the regulation was set to take effect, U.S. District Court Judge Ralph Erickson of North Dakota granted a request from 13 states — not including Texas — to block the rule, which would allow the federal government to regulate small streams and wetlands.
The debate over the EPA rule has to do with what the term "navigable waters" means, as well as the extent of the judges decision regarding the implementation of the rule.
For background over the question of what "navigable waters" means click on the following:
- EPA Seeks to Clarify Federal Water Law.
In 2000, when the Chevron Pipe Line Co. spilled 126,000 gallons of oil into a creek in West Texas, no water was flowing in the tributary. When the federal government sued the company under the Clean Water Act, though, a federal trial court judge ruled in the company's favor, arguing that the oil had not reached “navigable” water.
The EPA said that the clarifications the agencies are seeking do not add new bodies of water to its jurisdiction, they just explain that both wetlands and intermittent streams that often dry up in the summer are included in the act's definition.
“It is universally understood that term ("navigable water") includes many kinds of non-navigable waters,” said Jon Devine, senior attorney at the Natural Resources Defense Council. “The agencies are seeking to protect those water bodies that have a significant affect on waters that are navigable.”
But opponents of changing the federal rules say the EPA is overstepping its bounds, and that it could damage private property rights in the process.
“This potentially could allow for the federal government to require a permit to do anything on your land,” said Steve Pringle, legislative director of the Texas Farm Bureau. The Farm Bureau Federation is one of 29 groups in the Waters Advocacy Coalition that is lobbying against the EPA changes on behalf of the construction, mining, agricultural and energy interests.
Before 2001, the EPA and the Army Corps of Engineers believed the Clean Water Act protected almost all of the waters in the U.S. But in 2001 the U.S. Supreme Court ruled that the Clean Water Act did not protect an abandoned sand and gravel pit that had evolved into permanent and seasonal ponds — and that a solid waste agency wanted to fill.
A 2006 Supreme Court case in which a plaintiff filled 22 acres of Michigan wetland with sand in preparation for the construction of a mall only added to the confusion. The plaintiff argued that since the land was 20 miles from a navigable waterway, he wasn't breaking the law. The high court did not reach a majority opinion and remanded the case to a lower court; in that case, the Supreme Court justices each wrote individual opinions of what constituted "navigable waters."
“That Supreme Court case created mass confusion. It created room for additional defenses," said Daniel Cooper, a partner at Lawyers for Clean Water, which supports the proposed changes. "Clearly this will create more clarity of what is covered by the Clean Water Act. I think this will decrease the amount of litigation.”
