Texas Attorney General Greg Abbott joins a growing list of state attorneys general opposing the proposed rule.
by Todd Neeley, DTN Staff Reporter
OMAHA (DTN) — The state of Texas will sue the EPA and win if EPA does not withdraw the proposed Clean Water Act rule, Texas Attorney General Greg Abbott warned in a comment letter to the agency Monday.
Abbott joins a growing chorus of state attorneys general who are expressing concern about the proposed rule. Just last week, 15 other state attorneys general asked EPA to withdraw the interpretive rule that identifies 56 conservation practices that are exempt from the Clean Water Act.
Abbott, the Republican nominee for Texas governor, wrote in a seven-page letter on Monday that EPA misinterpreted recent U.S. Supreme Court rulings in proposing the new rule that essentially re-defines what waters fall in EPA jurisdiction.
The new rule relies primarily on two Supreme Court rulings in drafting the rule. Abbott said in the letter, “Lost in the agencies' analysis, however, is that in both cases, the Supreme Court attempted to reign in the federal government's perceived jurisdiction under the act.
“If the proposed rule is not withdrawn and is made final, then the state of Texas will have no choice but to challenge the rule in federal court where it will surely be struck down as violating federal law, exceeding the agency's statutory authority, and contravening the U.S. Constitution.”
Abbott's latest salvo is one in a growing surge of opposition to the rule. Also this week, a Missouri contingent including the Missouri Cattlemen's Association, Missouri Farm Bureau, Republican Sen. Roy Blunt and Republican Reps. Vicky Hartzler and Blaine Luetkemeyer, are planning a news conference at the Missouri State Fair to express opposition to the rule.
SIGNIFICANT NEXUS
Abbott's letter addresses the Supreme Court ruling in Rapanos v. The United States. In that case, the majority opinion was that wetlands adjoining a non-navigable stream did not meet the Clean Water Act's standard for waters of the U.S. In addition, Abbott said four justices held that “navigable waters” as regulated in the act “are limited to only those relatively permanent, standing or continuously flowing bodies of water forming geographic features, such as streams, oceans, rivers and lakes.” It was only Justice Anthony Kennedy who suggested there should be a broader “significant-nexus” test to determine which waters are jurisdictional — even ephemeral streams and tributaries.
Abbott said “landowners will often not know (or even know to consider) whether bodies of water on their private properties — potentially even dry fields and creek beds — are subject to Clean Water Act jurisdiction until a federal field agent arrives to conduct this highly subjective 'significant nexus' analysis.
“The proposed rulemaking makes no mention of — and it appears the federal agencies have not even considered — the rule's potential effect on the market value of land that is clouded by the uncertainty created by the agencies' new approach.”
'NEIGHBORING' DEFINITION
Abbott said he is concerned about EPA's proposed definition of “neighboring” as meaning “waters located within a riparian area or floodplain of a jurisdictional water, or waters with shallow subsurface hydrologic connection or confined surface hydrologic connection to such jurisdictional water.”
Abbott said in the letter that, “Under this proposed definition, it is difficult to envision any lands — especially those that lie near the coast — that are not potentially within the ambit of federal jurisdiction. This broad and overreaching definition would impose virtually no limit on federal jurisdiction.”
In addition, the proposed rule defines a tributary as having a bed and bank, along with an “ordinary high water mark.” Abbott said even Justice Kennedy indicated in his Rapanos opinion that determining an “ordinary high water mark” wouldn't be practical.
“Justice Kennedy disparaged the ordinary high water mark as providing 'no such assurance' of a reliable standard for determining a significant nexus,” Abbott wrote.
“The irony here is that while on one hand embracing Justice Kennedy's vague 'significant nexus' test for expanding its own jurisdiction over land and waters, the federal agencies conveniently omit that Justice Kennedy eschewed the 'ordinary high water mark' as an appropriate standard for determining that tributaries are 'waters of the United States.'”
STATES' RIGHTS
One of the common concerns coming from opponents of the proposed EPA rule is that it trumps constitutionally protected state powers in favor of federal expansion. Abbott raises the same concern in his letter.
“The Rapanos plurality observed that 'the government's expansive interpretation would 'result in a significant impingement of the states' traditional and primary power over land and water use,'” he said. “The court stated, further, that only a 'clear and manifest' statement from Congress could authorize an unprecedented intrusion into traditional state authority and that 'waters of the United States' hardly qualifies.'
“The Clean Water Act was enacted pursuant to Congress' authority to regulate interstate commerce under Article 1, section 8 of the Constitution. As a result, regulatory agencies violate the Constitution when their enforcement of the act extends beyond the regulation of interstate commerce.”
Read the letter here, http://tinyurl.com/…
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Posted with DTN Permission by Haylie Shipp
