Law 360 is reporting on yesterday's hearing in the United States' litigation against the State of Texas to cause the removal of an unpermitted “marine barrier” placed by the State of Texas in the Rio Grande River.  Putting aside the inhumanity of these barriers, they most certainly violate our nation's oldest environmental law which is something I expect the Courts will be telling Governor Abbott and his lawyers in the very near future.

The Rivers and Harbors Act of 1899 (the first version of which was passed by Congress in 1809, thirty-six years before Texas was admitted to the United States) makes it unlawful to create “any obstruction” “to the navigable capacity of any of the Waters of the United States” that is not "affirmatively authorized by Congress.”  Congress delegated that authority to the Secretary of War and that authority is now held by the United States Army Corps of Engineers.

Even Supreme Court Justice Thomas would readily admit that the Rio Grande River is a Water of the United States.  And the very purpose of Governor Abbott's marine barriers is to create an obstruction to navigating the river from the south to the north.

So why does Governor Abbott think that Texas doesn't need a permit from the Army Corps of Engineers to place these barriers in the Rio Grande River?  Well yesterday lawyers for the State of Texas and lawyers for the United States of America were arguing about whether a provision of the Rivers and Harbors Act specifying the criminal penalties that can be visited upon “every person and every corporation” that violates certain provisions of the Act, including the provision prohibiting unpermitted obstructions, means that the Act doesn't apply to the State of Texas because it isn't a “person” or a “corporation”.

Of course there is nothing in the legislative history of the Act which suggests Congress wanted to preserve the ability of any state to obstruct a Water of the United States.   The lawyers for the United States add that, even if a State (or its leader) can't be criminally liable for violating the Act, the Federal Courts are also authorized to enjoin (i.e. cause the removal of) unpermitted obstructions.   

Federal Judge Ezra is reported to have been inclined to agree with the lawyers for the United States on this, as would pretty much anyone else who has graduated from law school, or middle school.

More than half of the states are fighting with the Federal Government and many of the other states over the reach of the Clean Water Act.  However, one might have hoped that there were certain centuries old propositions on which everyone might agree.  The State of Texas's arguments this week over the application of our nation's oldest environmental law, the Rivers and Harbors Act of 1899, are inconsistent with that hope.