EPA Must Keep Texas Coastal Prairie Wetland Protections in WOTUS Rule

Kristen Schlemmer | May 30, 2019

On May 28, 2019, Galveston-based federal district judge George C. Hanks, Jr. remanded the 2015 Obama-era “waters of the United States” rule, more commonly known as the “Clean Water Rule,” to the U.S. Environmental Protection Agency for additional administrative proceedings.

In 2015, Texas Attorney General Ken Paxton, along with real estate developers and other industry groups, sued the U.S. Environmental Protection Agency in the U.S. District Court for the Southern District of Texas. The taxpayer-funded lawsuit asked Galveston-based federal district judge George C. Hanks, Jr. to reverse the Clean Water Rule, including its protections for Texas coastal prairie wetlands, which benefit Galveston and Houston-area communities with billions of dollars‘ worth of floodwater detention and protection from coastal storm surges. In sending the rule back to the EPA this week on a narrow procedural ground, Judge Hanks declined the Texas Attorney General’s invitation to remove this legal protection for regional wetlands.

During briefing last fall, Bayou City Waterkeeper asked Judge Hanks to uphold the rule’s protections for Texas coastal prairie wetlands. In April 2019, the Trump administration closed the comment period on a new draft “waters of the United States” rule that omits all protections for Texas coastal wetlands, along with a range of other vulnerable waters across the country. The final rule, which has not yet been issued, is likely to face several legal challenges.

Statement from Kristen Schlemmer, Legal Director

While Bayou City Waterkeeper is disappointed in the district court’s decision to remand the 2015 Clean Water Rule, we appreciate the district court’s refusal to reverse protections for Texas coastal prairie wetlands. Our region has lost thousands of acres of wetlands at a rapid rate due to rampant real estate development and a failure of state and federal regulation. Meanwhile, storms like Harvey have shown us the cost of this loss: widespread flooding that disrupts and harms the lives of people across the Galveston-Houston region.

The court’s narrow ruling confirms the Texas Attorney General went too far in challenging important protections for Texas coastal prairie wetlands. While the current administration has attempted to undo the Clean Water Rule with an entirely new rule that would dramatically narrow the historical scope of water quality protections across the United States, it remains to be seen whether that attempt at rulemaking will succeed. We urge the EPA to keep the 2015 Clean Water Rule intact and protect Texas coastal prairie wetlands.