Texas, industry groups challenge WOTUS changes

The state of Texas and industry groups are challenging the legality of recent changes the US Environmental Protection Agency (EPA) and the Army Corps of Engineers made in the definition of Waters of the US (WOTUS).

Texas attorney general Ken Paxton and a coalition of 17 industry groups led by the American Farm Bureau Federation filed separate lawsuits against EPA and the corps on 18 January in the US District Court for the Southern District of Texas asking the court to vacate the recently finalized WOTUS changes. Both lawsuits claim the changes expand the agencies' authority beyond what Congress intended.

The lawsuits are the latest action in prolonged deliberations over what bodies of water are subject to federal oversight. Attempts by the administrations of former presidents Barack Obama and Donald Trump ended up being challenged and blocked by the courts.

On 30 December 2022, EPA and the corps announced they had finalized a rule that establishes a "durable" definition of WOTUS, restoring water protections that were in place under the Clean Water Act prior to 2015. The rule was published in the Federal Register on 18 January, opening a 60-day period for opponents to file lawsuits, and is scheduled to be effective as of 20 March.

Among the points of contention for opponents to the rule changes is the new definition of interstate waters, which EPA and the corps have defined as "all rivers, lakes, and other waters that flow across, or form a part of, state boundaries," including wetlands.

The 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," Texas said. That is a violation of the authority Congress gave the agencies in the Clean Water Act, which gives the federal government jurisdiction over "navigable waters," the lawsuit claims.

Texas also said the recent changes to WOTUS do not consider whether interstate water supports commerce and intrude on individual states' sovereignty.

The industry groups made similar claims in their lawsuit. And both Texas and the industry groups said EPA and the corps acted in an "arbitrary and capricious" manner that violates the Administrative Procedure Act.

The corps directed requests for comment to the EPA, which declined to comment on the lawsuits.

Paxton filed his lawsuit on behalf of the state as well as agencies including the Texas Commission on Environmental Quality, the Railroad Commission of Texas, the Texas Department of Agriculture. Other industry groups that filed with the American Farm Bureau Federation include the American Petroleum Institute and the National Mining Association.

By Anna Harmon