The Battle Over Water Protection: Texas Challenge To Biden Rule

A federal district court in Texas today handed down an extraordinary decision, preventing the new science-based rule that was supposed to revise the definition of “Waters of the United States” from going into effect in Texas and Idaho.

The Biden administration developed the rule using a conservative approach, which every presidential administration has utilized over the previous 45 years. It elucidates protections that have been in place for a long time for the nation’s waters. The court, however, concludederal agencies had exceeded the scope of the broad authority that the Clean Water Act granted.

“This decision is a setback for the public, which has long depended on the Clean Water Act to safeguard downstream communities and the environment,” said Stuart Gillespie, senior attorney with Earthjustice. “We will work closely with our partners to ensure the law and science prevail, and that our communities receive the protections afforded by the Clean Water Act.”

The Rule to Protect “Waters of the United States”

The Clean Water Act, also known as the “Waters of the United States” Act, was enacted by Congress in 1972 to establish an all-encompassing protection program for the waters of our country. Over three-quarters of the population favors increased federal protections for our nation’s waters. The United States Congress acknowledged the significant role that headwater streams and wetlands play in preventing flooding, pollution, and other negative impacts on downstream waters.

Since then, most of the available scientific evidence has pointed to the same conclusion. Throughout history, this time-honored framework has provided the United States Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (Corps) with the tools necessary to protect these waterways, wetlands, and rivers.

The new rule would have built upon the long-standing precedent and approach, providing additional clarity and a logical, step-by-step framework for identifying waters that fall within the Act’s protections. This would have been accomplished by building on the longstanding precedent.

“For far too long, wetland loss has been our region’s reality,” said Dr. John Jacob, Advisory Council member of Bayou City Waterkeeper. “To the untrained eye, it may not be clear how critical it is to save wetlands and waterways, which give the Houston region enormous benefits in terms of flood protection and improving water quality.”

Despite this, the state of Texas and Idaho and various industry groups challenged the rule because it was too “uncertain” and could significantly expand the jurisdiction’s reach. They did not present evidence to support their broad assertions about the situation.

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To the contrary, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) meticulously demonstrated how the rule provided “clarity and consistency” by tracking the longstanding approach to protecting our nation’s waters and ensuring that they do not turn into conduits for pollution.

Congressman Bob Good tweeted that Biden’s Waters of the United States Rule places a tremendous burden on farmers and is an egregious example of government overreach. You can see below:

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Biden's Waters of the United States Rule places a tremendous burden on farmers and is an egregious example of government overreach. Today, I voted to repeal the rule and protect hard-working Americans from government overreach.

— Congressman Bob Good (@RepBobGood) March 9, 2023

Congress faced this very concern when it passed the Clean Water Act. Despite this, the court ruled in favor of the states of Texas and Idaho and the industry, preventing the rule from going into effect in those states.