While we were all patiently waiting for the United States Supreme Court's opinion (or opinions) in Sackett v. EPA, Bloomberg Environment reports that EPA has another Clean Water Act surprise.
For those of you who have missed the past few episodes in the never ending saga over the jurisdictional reach of the Clean Water Act, here's what you've missed.
EPA's and the Army Corps of Engineers' eighth attempt to determine the reach of the Clean Water Act is broader than any of their other attempts other than the sixth attempt during the Obama Administration. EPA's most recent attempt would extend Federal jurisdiction under Section 404 of the Act to any impoundment, wetland or other waters that are either relatively permanent (whatever that means) or have a significant nexus to what for most of the past fifty years was considered a Water of the United States.
At the same time, the Sacketts of Idaho have asked our nation's highest court to hold that the "significant nexus" factor in that equation goes beyond what Congress authorized when it passed the Clean Water Act a half century ago. The Sacketts, and several Republican State Attorneys General and Trade Associations, argue that the late Supreme Court Justice Scalia's "continuous surface connection to bodies that are 'waters of the United States' in their own right" test is the correct one for determining Clean Water Act jurisdiction. A decision by the Supreme Court is expected literally any day.
Two Federal District Court Judges have decided that waiting for the Supreme Court's decision could result in irreparable harm to States that have complained about EPA's regulation and therefore enjoined it. As a result, EPA's most recent rule is now the law in less than half of our United States.
Now Bloomberg Environment is reporting that EPA is moving ahead with a rulemaking begun during the Trump Administration to clarify when States can assume responsibility for enforcing Section 404 of the Act. At the very end of the Trump Administration EPA gave this authority to the State of Florida but that decision is the subject of yet another lawsuit.
If and when the potential regulation mentioned yesterday is effective, the very States that are challenging the Federal Government's assertion of Clean Water Act jurisdiction over certain wetlands and waters could be responsible for asserting, or not, that jurisdiction. That brings to mind something about foxes and hen houses.
Notwithstanding today's report, I wonder whether EPA will decide to move forward with the regulation if, as most observers expect, the Supreme Court decides the reach of the current Clean Water Act is much narrower than EPA and the Corps of Engineers say it should be. Whatever EPA does will most certainly be challenged by someone.
In the meantime, the longest running controversy in environmental law continues.
A Trump-era proposal that would clarify how states can take control of federal wetlands permitting is advancing in the Biden administration, an EPA official said Tuesday. The Environmental Protection Agency this summer plans to propose a new rule that will clarify how states can assume the federal wetland and waterway dredge-and-fill permitting program under Section 404 of the Clean Water Act, Kathy Hurld, EPA state and tribal wetland program lead, said at a National Association of Wetland Managers conference in Nebraska.
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