Texas Asks Court to Vacate WOTUS Rule

LINCOLN, Neb. (DTN) -- The state of Texas has asked a federal court to vacate the recently finalized waters of the U.S. rule, saying in a lawsuit filed on Wednesday the rule violates the state's rights by expanding federal jurisdiction over waters otherwise regulated by the state.

The U.S. District Court for the Southern District of Texas in Galveston has been asked to find the WOTUS rule to be "arbitrary, capricious, and abuse of discretion" and in violation of the Administrative Procedure Act.

Texas alleges that much of the language used in the final rule is "vague" and left wide open to interpretation, essentially leaving states like Texas to interpret their meanings.

The lawsuit was filed even though the new WOTUS rule does not officially become law until sometime around March 1.

Texas alleges EPA and the U.S. Army Corps of Engineers' rule violates the Fifth and 10th amendments to the Constitution and the Commerce Clause. The 10th Amendment holds that powers not delegated to the U.S. government by the Constitution are reserved to the states. The Fifth Amendment provides due process rights to states and individuals.

"The federal agencies are casting a broad, amorphous shadow over the economy through the final rule," Texas said in its complaint.

"As described previously, the final rule seeks to subject the state of Texas, its agencies and its citizens to a costly and confusing regulatory framework affecting large, crucial portions of the economy -- agricultural development, construction and maintenance of infrastructure, energy development and management of state-owned lands to name a few -- with the risk of potentially incurring daily civil and/or criminal penalties of non-compliance."

Texas said the EPA and Corps of Engineers seek to "expand their own authority without clear statutory support when the CWA itself specifically recognizes, preserves, and protects the primary responsibilities of the states to plan the development and use of their land and water resources."

EPA declined to comment when contacted by DTN.

TEXAS ARGUES RULE EXERTS POWER

The state argues Congress has not "clearly empowered" federal agencies to "interpret their own jurisdiction" and "exert unheralded" power over the U.S. economy.

The Texas complaint points to several concerns regarding the specificity of WOTUS definitions finalized and asserts some definitions were crafted to allow the federal government to assert jurisdiction.

"The final rule also lacks clarity, leaving those wishing to identify the ambit of federal power over dry land or minor water features at the mercy of an expensive, vague and arbitrary analysis, lest they face a staggering criminal or civil penalty," the lawsuit said.

The EPA and Corps faced criticism for not waiting to finalize the rule until the Supreme Court issued a ruling in the pending Sackett v EPA case. In that case, the court has been asked to consider the proper test for determining whether wetlands are jurisdictional.

"Inexplicably, the federal agencies have chosen to hammer through the final rule rather than await instruction pending from the Supreme Court," Texas said in its lawsuit.

As written, the complaint said, the final rule allows the federal agencies to exert jurisdiction over interstate waters without performing evaluations.

"The federal agencies include 'interstate wetlands' in this category -- regardless of whether the wetland is adjacent to any other jurisdictional water -- simply for the fact that the wetland crosses state lines," the lawsuit said.

"Moreover, the final rule allows for cascading expansion of federal authority from these non-navigable 'interstate waters' by lumping even a minor water feature (like a ditch, ephemeral stream, pond, or isolated wetland) that crosses state lines in with traditional waters, expanding the federal agencies' authority to all wetlands, tributaries, impoundments, or other waters connected to these minor water features."

Texas said the agencies wrote the rule in such a way to allow them to "have it both ways" when it comes to questions of jurisdiction.

For example, the lawsuit said the agencies can declare impoundments -- a body of water confined within an enclosure -- as jurisdictional "regardless of the water's jurisdictional status at the time the impoundment was created."

So, if such a water body impounded was not a WOTUS at the time it was impounded but has since become jurisdictional, the impoundment is now jurisdictional, the lawsuit said.

"And in the case of an impoundment for which the water body impounded was jurisdictional at the time of impoundment, but that water body is no longer jurisdictional, the impoundment remains jurisdictional, even if the contributing water body is not," according to the complaint.

"This catch-all approach requires landowners to both monitor hydrological developments related to tanks and ponds after their creation and also know the historical classifications of water features located on their properties. Rather than add clarity, the final rule creates complication and confusion."

DITCHES, CANALS COULD BE TRIBUTARIES

The lawsuit said the final rule makes it possible for ditches and canals to be tributaries so long as they contribute flow to a traditional navigable water.

"Those tributaries are jurisdictional tributaries when they meet either the 'relatively permanent' or 'significant-nexus standard,'" the complaint said.

"As is endemic in the final rule, this creates another cascading effect -- causing impoundments of these ditches and canals, and wetlands adjacent to these ditches and canals -- to become jurisdictional.

"Federal agencies take the position that the definition 'does not require flow from the wetland to the jurisdictional water or from the jurisdictional water to the wetland,' articulating no regard for whether the wetland has a significant nexus or relatively permanent connection to jurisdictional water."

Although the expected Supreme Court ruling in Sackett could affect which wetlands are jurisdictional, the complaint said the agencies deem wetlands as adjacent to navigable waters if they are "reasonably close enough to modulate the quantity or quality of jurisdictional waters."

"Pairing the federal agencies' 'adjacency' analysis with the overly broad and vague language in the relatively permanent standard or significant-nexus standard gives the federal agencies almost unfettered discretion in determining if 'adjacent wetlands' are 'waters of the United States,'" the complaint said.

In addition, the state expressed concern about a WOTUS category of waters called "other jurisdictional intrastate waters."

The complaint calls it a "catch-all" category that allows the agencies to claim jurisdiction of intrastate lakes, ponds, streams or wetlands that are not already identified by the new rule.

EPA and the Corps can do that if such waters satisfy either the relatively permanent standard or significant-nexus standard.

"Due to the overly broad definitions and application of the other four categories to determine jurisdictional waters and standards, this category for other jurisdictional intrastate waters swallows up any potential remaining waters not already under the federal agencies' authority," the lawsuit said.

As was a major concern by agriculture groups about the 2015 rule, Texas said in its lawsuit the use of the relatively permanent standard could conceivably make stream beds that remain dry for "substantial portions" of the year.

Read the full lawsuit here: https://www.texasattorneygeneral.gov/….

Read more on DTN:

"Significant Nexus Now WOTUS Law of Land," https://www.dtnpf.com/…

"Q&A With EPA's Rod Snyder on WOTUS," https://www.dtnpf.com/…

"Ag Groups: WOTUS Complicates Farming," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @DTNeeley

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