This morning Juan Carlos Rodriguez reports in Law 360 what EPA Administrator Regan had already suggested -- that the Biden Administration apparently thinks that the eighth time really can be the charm with respect to EPA's effort to determine the reach of the Federal Clean Water Act by regulation.
In litigation pending in Massachusetts challenging the seventh EPA effort, EPA has asked the Federal Court to send the matter back to EPA for further action and maintain the seventh attempt as the law in the meantime.
This brings to mind a scene in the classic movie My Cousin Vinny when Vinny says about passing the Bar exam, "for me, six times was the charm." The difference is that Vinny did pass the Bar exam on that sixth attempt while there is absolutely no reason to believe that an eighth rule making by EPA will do anything other than lead to more litigation and continuing confusion in the longest running controversy in environmental law.
Mr. Rodriguez's report does a good job of covering all the bases except that his story begins in the middle. One has to go all the way back to the Carter Administration to tell the complete story of EPA's efforts to do by regulation what Congress didn't do by legislation. Sadly, the only thing more improbable than the possibility that, for EPA, the eighth time will be the charm, is the possibility that Congress will resolve the reach of the Federal Clean Water Act once and for all.
After both the Obama and Trump administrations spent years crafting their own rules to define what qualifies as "waters of the United States" subject to federal oversight, President Joe Biden's administration will take its own crack at the matter, with hopes of arriving at a definition that will last beyond his tenure.
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