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.

Ruling that "the risk of irreparable harm to the states is both imminent and likely" if the regulation took effect, Erickson blocked the rule as a lawsuit challenging it winds through the courts.

Ranchers, property rights advocates and Republican critics of the Obama administration proclaimed victory, with Paxton saying the ruling prevented "a dangerous and ill-conceived set of regulations from taking effect."

But the EPA said it would still enforce the regulation in the 37 states not named in that suit. 

"In all other respects, the rule is effective on August 28,” the agency said in a statement, adding that it is “evaluating these orders and considering next steps in the litigation.”

Paxton disagreed. "The injunction applies nationwide and therefore the rule is not enforceable in Texas,” the Republican said in a statement Friday.

Texas and other states have also sued over the rule, which the farm lobby and Republicans paint as an attack on private property rights. The Texas suit — filed with Louisiana and Mississippi — has been on hold since mid-August. A district judge granted a stay in the case, pending a ruling on whether the EPA can consolidate the lawsuits it faces.

North Dakota Attorney General Wayne Stenehjem, whose state is at least temporarily exempt from the rule, agreed with Paxton's interpretation, the Associated Press reported. 

This is not the first time the federal government has implemented a rule in some states after a court blocked it in others, however.

In 1993, for instance, the U.S. Court of Appeals for the Fourth Circuit struck down the “Migratory Bird Rule,” which gave the federal government jurisdiction over certain waters where migratory birds lived, but the EPA and the Army Corps of Engineers enforced the rule in other states until the U.S. Supreme Court shot it down in 2001.

Environmental groups criticized Thursday's decision, but took heart that it supposedly did not apply across the United States.

"This case is an unfortunate example of a single federal court judge in North Dakota siding with big polluters over the 1 in 3 Americans that stand to benefit from the new clean water rule," said Sara Smith, an attorney with the group Environment Texas. "Fortunately, the rule remains intact here in Texas, and district court judges in West Virginia and Georgia have declined to block the rule against challenges in their states."

The 13 states indisputably exempt from the rule are: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.

The EPA rule has sparked loud protests and plenty of questions. 

Much of the anger stems from a dispute over whether or not it actually enlarges the EPA's jurisdiction. The 1972 federal Clean Water Act made it illegal to pollute "navigable waters of the United States." The rule is supposed to clarify what could be defined as a "navigable water."

The EPA always believed its jurisdiction stretched beyond traditional navigable waters, like rivers and seas, to the smaller bodies of water and wetlands that can affect them, but it didn’t have a strong legal basis to prove it. The updated definition clarifies this authority, leaving ranchers and industry officials to wonder whether they will have to check with the government before using their own land. 

According to the EPA, their purview only includes 60 percent of all streams — plus millions of acres of wetland — and it barely expands the agency’s jurisdiction. Paxton has countered the change means "virtually every river, stream and creek in the U.S. will come under the oversight of bureaucrats from the EPA."

Disclosure: Environment Texas was a corporate sponsor of The Texas Tribune in 2013. A complete list of Tribune donors and sponsors can be viewed here.