Lara Beaven of Inside EPA reports on the standoff between the State of Florida and the United States Environmental Protection Agency over the "current definition" of Waters of the United States for the purpose of determining the reach of the Federal Clean Water Act.
EPA is in the midst of its eighth attempt to define Waters of the United States by regulation. In the meantime a basic principle of administrative law dictates that the Trump Administration EPA regulations remain in force except where they've been stricken down by a federal court. That's why, when the Obama Administration EPA regulations were challenged in court, they were the law in half the states (where they were upheld or not challenged) but not in the other half of the states where Courts of Appeal or District Courts struck them down. Ultimately the Trump Administration EPA rescinded the Obama Administration EPA's regulations and we had the same Federal law in all fifty states for a few months.
Which brings us to the Biden Administration EPA's turn at the Waters of the United States plate.
The Biden Administration EPA decided that two or three District Courts striking down the Trump Administration EPA's regulations was good enough and announced it would from coast to coast apply a definition of the Waters of the United States provided by a smorgasbord of Agency guidance and Supreme Court decisions before the Obama Administration while it was going through its own rule making.
EPA made clear that it expected others to follow its lead in turning back the Waters of the United States clock as well even though the Trump Administration EPA's regulations have not yet been formally rescinded.
The State of Florida, which has been delegated by EPA the authority to administer the relevant sections of the Federal Clean Water Act says thanks but no thanks. Florida intends to continue to apply the Trump Administration EPA's regulations over EPA's objections which it may very well have the legal right to do since those regulations haven't been stricken down in the Eleventh Circuit or the State of Florida.
What happens next? Well the Supreme Court could take the ball out of both EPA's and Florida's hands when it takes another swing at the constitutional and statutory limits on the reach of the Federal Clean Water Act later this year. Or EPA's still nascent rule making could tie Florida's hands. Or, perhaps least likely, Congress could provide a clearer definition of Waters of the United States.
In the meantime, uncertainty will continue to reign as the longest running controversy in environmental law continues.
“Currently, the U.S. EPA is engaged in rulemaking to draft a new WOTUS rule despite the U.S Supreme Court’s decision to review the WOTUS definition in Sackett v. EPA,” the spokeswoman says. “While there remains substantial confusion at the federal level as to the WOTUS definition, Florida remains committed to administering Florida’s Clean Water Act programs consistent with applicable law and to maintaining its cooperative partnership with the Federal Agencies to ensure maximum protection of Florida’s water resources.”
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