Monday, the same day the U.S Supreme Court dealt a crushing blow to the Obama Administration’s environmental agenda by rejecting EPA’s mercury rule for coal-powered plants –the court, in a 5-4 majority opinion by Justice Antonin Scalia, said the Environmental protection Agency must reconsider the rule because it didn’t take industry cost into account –Texas and 15 other states filed a lawsuit challenging the Environmental Protection Agency and the United States Army Corps of Engineers Clean Water Rule: water of the United States.
Assistant Secretary for the Army (Civil Works) Jo-Ellen Darcy, called then new rule finalized in May 2015, generational, saying it completed another chapter in the history of the Clean Water Act by giving the public greater clarity, consistency and predictability when making jurisdictional determinations. Texas, Louisiana and Mississippi filing a joint lawsuit in a Houston court said the new water rule published yesterday was both costly, and an illegal attempt to expand the regulatory power of the Environmental Protection Agency (EPA). In a separate case, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, New Mexico, Nevada, North Dakota, South Dakota, and Wyoming are seeking to have the rule overturned.
” The EPA’s new water rule is not about clean water – it’s about power”, Texas Attorney General Ken Paxton said. “If it moves forward, essentially anybody with a ditch on their property could be at risk of costly and unprecedented new regulations and a complicated web of bureaucracy. Texans shouldn’t need permission from federal government to use their own land”.
EPA and environmentalists have said the protections of the nation’s streams and wetlands has been confusing, complex and time-consuming as a result of Supreme Court decisions in 2001 and 2006, and that the new rule protects clean water necessary for farming, ranching and forestry.
Environment Texas Director, Luke Metzger, in a statement called Attorney General Paxton’s lawsuit outrageous, and said Paxton wanted to turn back the clock and allow polluters to spoil streams which feeds great waterways like the Colorado River and Galveston Bay.
” The EPA rule will protect 143,000 miles of Texas streams, including those which feed the drinking water sources of 11,5 million Texans”, Metzger said, adding that more than 34,000 Texans and dozens of local elected officials, small business and ranches submitted comments in support of the rule.
According to EPA the new clean water rule will:
Clearly defines and protects tributaries that impact the health of downstream water.
The Clean Water Act protects navigable waterways and their tributaries. The rule says that a tributary must show physical features of flowing water – a bed, bank, and ordinary high water mark – to warrant protection. The rule provides protection for headwaters that have these features and science shows can have a significant connection to downstream waters.
Provides certainty in how safeguards extends to nearby waters.
The rule protects waters that are next to rivers and lakes and their tributaries because science shows that they impact downstream waters. The rule sets boundaries on covering nearby waters for the first time that are physical and measurable.
Protects the nation’s regional water treasure.
Science shows that specific water features can function like a system and impact the health of downstream waters. The rule protects prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas costal prairie wetlands when they impact downstream waters.
Focus on streams, not ditches.
The rule limits protection to ditches that are constructed out of stream 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.
Maintains the status of waters within Municipal Separate Storm Sewer Systems.
The rule does not change how those waters are treated and encourages the use of green infrastructure.
Reduces the use of case-specific analysis of waters.
Previously, almost any water could be put through a lengthy case-specific analysis, even if it could not be subject to the Clean Water Act. The rule significantly limits the use of case-specific analysis by creating clarity and certainty on protected waters and limiting the numbers of similar situated features.
” The EPA’s final rule is so broad and open to interpretation that everything from ditches and dry creek beds, to gullies, to isolated ponds formed after a big rain could be considered a water of the United States”, Attorney General Paxton said.