Idaho joins Texas lawsuit over new federal clean-water rules

Idaho clean-water rules
Idaho has joined Texas in a lawsuit involving the federal Clean Water Act. (Photo by Anastasia Zhenina on Unsplash)

Idaho has joined a Texas lawsuit against the Biden administration’s waterway protections, claiming the rules are too vague and violate state sovereignty rights.

The lawsuit, originally filed in southern Texas’ federal courts Jan. 18, was amended to include Idaho on Monday. In it, Texas Attorney General Ken Paxton and Idaho Attorney General Raúl Labrador contend that a new interpretation of a Clean Water Act rule is too vague, oversteps the bounds of federal authority and puts the liberties of states and private property owners at risk.

The federal rule was finalized by President Joe Biden’s administration in December. It defines which “waters of the United States” — often called “WOTUS” — qualify for protection under the Clean Water Act. The change repeals a Trump-era rule and expands some water pollution protections to thousands of small streams, wetlands and other waterways.

Roughly half of the U.S. is taking part in lawsuits challenging the rule. Twenty-four states joined in a lawsuit filed in North Dakota’s federal courts earlier this month, making largely the same arguments against the WOTUS rule as those being made in the Texas case.

Some Idaho agency officials and leaders have expressed surprise at Labrador’s decision to join the Texas lawsuit, rather than the larger 24-state effort — in part because his office never touched base with them on the matter until after both lawsuits had been filed. Historically, the attorney general’s office has looped in state agencies when relevant litigation efforts are in the works.

Emails obtained by The Associated Press through a public record request showed those officials expressing dismay that they weren’t notified that either lawsuit was in the works by the Idaho attorney general’s office. Republican Idaho Gov. Brad Little, who had worked with many of the governors from the 24-state lawsuit in writing a letter to Biden opposing the WOTUS rule, only learned about the larger lawsuit when he saw a press release from another state, Little’s spokesperson said last week.

On Tuesday, Labrador’s spokeswoman Beth Cahill said the attorney general’s legal team decided the Texas suit was the better choice because having just two states listed as plaintiffs would allow Idaho’s interests to be “front-and-center.”

Cahill also noted Texas was the first to file suit against the Biden administration’s interpretation of the WOTUS rule, and that Texas has experience fighting an earlier version of the rule released under the Obama administration. She also said the federal judge handling the case has handled complex environmental cases in the past.

The states bringing both of the lawsuits brought in Texas and North Dakota make similar arguments against the rule, claiming that the Environmental Protection Agency and U.S. Army Corps of Engineers overstepped their authority and jurisdiction by trying to encompass more waters than allowed in the Clean Water Act. Both lawsuits argue that the new rule is vague, arbitrary and capricious, and that it would unduly burden property owners, placing them at risk of criminal or civil penalties if they fail to correctly guess which waters on their land fall under the Clean Water Act.

Both lawsuits ask their respective courts to find the rule unlawful and vacate it.

The federal agencies have not yet responded to the lawsuits. The states in both federal cases have asked their respected judges to put the federal rules on hold while the lawsuits move forward.

Exactly which wetlands are protected by the Clean Water Act is a question that has already been raised in a long-running dispute between a northern Idaho couple and the EPA. The U.S. Supreme Court heard arguments in the lawsuit brought by Chantell and Michael Sackett last year, and the ruling could determine the reach of the Clean Water Act on private property.

The Sacketts purchased their property near Priest Lake in 2005, and they decided to start building a home here in 2007. They had filled part of the property — described by supporters as “soggy ground” and described by the EPA as a wetlands — with rocks and soil in preparation for construction. But federal officials ordered the work halted, and the case has bounced around the courts for years.


A proposed definition for “Waters of the United States”

Andy WalderaOn April 21, 2014, the U.S. EPA and the U.S. Army Corps of Engineers published a proposed administrative rule in the Federal Register (79 FR 22187) attempting to further define the term “Waters of the United States” under the Clean Water Act.

The Act’s permitting programs touch almost all aspects of land use and development in and around regulated water bodies: agricultural uses and practices, commercial and industrial land uses and practices, and even small scale residential development and land use. Consequently, interpretation, application, and modification of the definition of “Waters of the United States” has far-reaching implications.

The EPA and the Corps assert that the rulemaking is necessary to end regulatory confusion left in the wake of various United States Supreme Court opinions regarding what water bodies are jurisdictional (i.e., subject to regulation under the Act) and those that are not. Jurisdictional water bodies are regulated under the Act via various permitting programs governing the discharge of pollutants (Section 402 of the Act—known as the NPDES program, and Section 303 which sets water quality standards and mandates the creation of Total Maximum Daily Loads for impaired waters) and dredging and filling activities (Section 404 of the Act).

Many think the Act has been stretched so far beyond any logical application that it is hopelessly unworkable, creating unfunded mandates requiring a grossly disproportionate expenditure of effort and money to achieve only minute incremental gains in water quality. Others contend that the Act is just hitting its stride, and that much work remains to be done (and much time and money to be spent) correcting decades of perceived environmental abuses. The EPA and the Corps contend that their proposed definition is a natural outgrowth of the stated purpose of Section 101 of the Act: “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”

While the truth likely resides somewhere in between, there is no question that the EPA and the Corps’ proposed definition is expansive. For example, the United States Supreme Court in Rapanos v. United States, 547 U.S. 715 (2006), questioned whether seasonally and storm event-related “intermittent” and “ephemeral” water bodies were subject to the Act. The proposed rule answers the question in the affirmative, casting a broad net placing all tributaries of navigable waters and interstate waters and wetlands—including those that flow or are inundated only seasonally or intermittently—under the reach of the Act.

This is significant because the EPA estimates that approximately 60 percent of stream miles in the U.S. are intermittent. That percentage is magnified here in the West where 94 percent of Arizona streams are intermittent, 89 percent are dry most of the year in Nevada, and 88 percent percent are intermittent and ephemeral in New Mexico. Man-made water bodies (ditches, flumes, aqueducts, drains, etc.) are not immune from jurisdiction under the proposed rule either, provided they are tributary to other jurisdictional waters—which they frequently are.

Proponents of the rule, including the agencies, cite to the rule’s “significant nexus” requirement—a term originating from Justice Kennedy in the Rapanos decision, but one he did not define—as an important limitation; evidence that the Act cannot automatically apply to intermittent and ephemeral streams and isolated wetlands absent some scientifically demonstrable link or contribution to the physical, chemical, or biological integrity of downstream waters. But, that supposed significant nexus “limitation” does not cleanly end jurisdictional inquiry. Instead, EPA and the Corps acknowledge that several jurisdictional “other waters” determinations will have to be made on a case-by-case basis because “significant” hydrologic interconnection is rarely readily apparent. Jurisdictional determinations made on a case-by-case basis will inherently contain some modicum of subjectivity, and a case-by-case approach begs the question of whether the stated clarity and efficiency gains of the proposed rule will truly materialize.

Particularly concerning in southern Idaho is the proposed rule’s implications for the thousands of miles of irrigation facilities (delivery ditches and drains) and the rural and urban lands that are adjacent to and upstream of those facilities (though many of these facilities have already been considered jurisdictional for years under the Ninth Circuit’s 2001 Headwaters v. Talent Irrigation District decision). Idaho’s predominantly desert landscape is also traversed by miles of intermittent and ephemeral washes and gullies. While the proposed rule may breed additional clarity by automatically including these types of water bodies under the Act, the question remains whether it was the Act’s intent to regulate these water bodies, thereby affecting nearly all land use and development activities adjacent to, and upstream of, them.

The Act’s ultimate intent is an interesting question. The Act is an outgrowth of the Rivers and Harbors Act of 1899. The goal of the Rivers and Harbors Act was to maintain the physical navigability and utility of the Country’s rivers and harbors for commerce-related purposes. It prohibited the discharge of navigation-threatening refuse into waterways without a permit. It also prohibited the dredging and filling of water bodies capable of supporting commercial navigation. The Rivers and Harbors Act was not a pollution control or prevention statute; rather it was a commerce protection-oriented statute with some secondary pollution prevention benefit ancillary to the physical navigability goal.

In 1948, Congress enacted the Federal Water Pollution Control Act. This Act, too, was less a pollution prevention statute than it was a means by which the federal government could provide loans and funding for investigating and cleaning up water pollution after the fact. However, subsequent amendments to the Water Pollution Control Act in 1956 and 1965 began to shift focus to pollution prevention, not just as a public health issue, but as an environmental issue as well. Pollution prevention appeared to be the primary theme of 1972 amendments reorganizing the Water Pollution Control Act into the federal Clean Water Act as we more or less know it today.

The Act has evolved from its more practical, commercial navigation-protective roots into a pollution prevention first and foremost vehicle. There is no question that the Act has had many successes, particularly early on when pollution gains were easier to achieve and relatively cost effective to make. But when is jurisdictional reach too much? When is a man-made ditch just a ditch, or an otherwise dry wash, just a dry wash? At what point does the weight of regulation outstrip and crush its utility? The pending proposed rule does not answer these questions, but it certainly raises them.

The public comment period for the proposed rule remains open until October 20, 2014. Public comments can be submitted online under EPA Docket Number: EPA-HQ-OW-2011-0880.

Andy Waldera is a shareholder at Moffatt, Thomas, Barrett, Rock & Fields, Chtd. in Boise. His practice focuses on environmental/natural resources, water, and agricultural land use law. His email address is: [email protected] More information is available at www.moffatt.com.