Texas' Challenge Halts Biden's Rule to Protect "Waters of the United States"

Today, a federal district court in Texas issued an extraordinary decision halting the new science-based rule revising the definition of “Waters of the United States” from taking effect in Texas and Idaho. The Biden Administration formulated the rule based on a conservative approach taken by every presidential administration for the past 45 years. It clarifies longstanding protections for the Nation’s waters. The Court, however, found that the federal agencies overstepped their broad authority under the Clean Water Act.

“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.”

In 1972, Congress passed the Clean Water Act to provide a comprehensive program for safeguarding the integrity of our Nation’s waters— “waters of the United States.” More than three in four people support stronger federal protections for our nation’s waters. Congress recognized that headwater streams and wetlands play a crucial role in protecting downstream waters from flooding, pollution, and other adverse impacts. That point has since been reaffirmed by the overwhelming scientific record. Historically, this longstanding framework gave the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) tools to protect these streams, rivers, and wetlands. The new rule would have built on that longstanding precedent and approach by providing additional clarity, and a logical, step-by-step framework for identifying waters that fit within the scope of the Act’s protections.

“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.”

Nonetheless, Texas, Idaho, and Industry groups challenged the rule on the grounds that it was too “uncertain” and might therefore result in a massive extension of jurisdiction. They failed to present any evidence to prove that sweeping theory. To the contrary, EPA and the Corps carefully demonstrated how the rule provided “clarity and consistency” by tracking the longstanding approach to protecting our Nation’s waters and ensuring they do not turn into conduits for pollution—the very concern Congress confronted when it passed the Clean Water Act. The court, nonetheless, stopped the rule from going into effect in Texas or Idaho, siding with the States and Industry.

“Wetlands have an obvious relationship with our intricate network of bayous, creeks, rivers, and bays in Texas,” said Kristen Schlemmer, legal director for Bayou City Waterkeeper. “Our wetlands deserve protection. By attacking the rule, while refusing to adopt any wetland protections of its own, the State of Texas shows its disregard for the communities of our region who rely on these natural features for cleaner water, flood protection, and natural carbon storage.”