To Paxton's Cheers, Court Blocks EPA Clean Water Rule

A federal appeals court has blocked a major Obama administration clean water rule, handing an early victory to Texas Attorney General Ken Paxton and other states trying to drown it in court.

Writing that opponents “have demonstrated a substantial possibility of success,” the U.S. Court of Appeals for the Sixth Circuit on Friday issued a stay on the “Waters of the U.S.” rule, halting the Environmental Protection Agency’s effort to better define which waters it protects. 

The nationwide stay comes about six weeks after the rule took effect in 37 states, including Texas, which was not named when a North Dakota judge put the rule on hold elsewhere. 

"The court’s ruling is good news for property owners whose land would have been subject to extensive new federal regulations due to this overreaching new water rule,” Paxton, a Republican, said in a statement Friday. 

"We look forward to litigating the merits of the Clean Water Rule," the EPA said in its own statement, which noted that the appeals court in its stay "acknowledges that clarification of the Clean Water Act is needed and that 'agencies conscientiously endeavored, within their technical expertise and experience, and based on reliable peer-reviewed science, to promulgate new standards to protect water quality that conform to the Supreme Court’s guidance.'"

"The Clean Water Rule was developed by the agencies to respond to an urgent need to improve and simplify the process for identifying waters that are and are not protected under the Clean Water Act, and is based on the latest science and the law," the statement continued.

An EPA spokeswoman declined to say whether the agency was able to take any enforcement or other action under the rule in the six weeks it technically was in effect in Texas and other states. 

Whether the EPA rule is a benign clarification or a power grab depends on whom you ask. 

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 "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, but it has left ranchers and industry officials nervous about whether they will need to check with the government before using their own land.

The EPA says its purview only includes 60 percent of all streams — plus millions of acres of wetlands — 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."

Environmentalists say the rule would plug “loopholes” that threatened thousands of miles of previously unprotected streams, including some 143,000 miles of waters in Texas. 

For instance, in 2007, when crude oil spilled into Titus County's Edwards Creek, the EPA did not step in to demand a cleanup, saying it was too difficult to prove its jurisdiction. 

“Texas' waterways are incredibly important to our environment, our health and our economy,” said Sara Smith, an attorney with the group Environment Texas. “Unfortunately, polluting industries promised legal warfare when the Obama Administration decided to move forward on this rule, and that's exactly what we are seeing now.”