Will EPA's 9th attempt to determine the reach of the Clean Water Act be the charm? The Waters Advocacy Coalition doesn't seem to think so.

Last week the Waters Advocacy Coalition sent to the heads of the Environmental Protection Administration and the Corps of Engineers many "recommendations" regarding EPA's and the Corps' post-Sackett attempt to determine the reach of the Federal Clean Water Act.  This will be the Executive Branch's second attempt to do this during the Biden Administration, following similarly unsuccessful attempts during the Obama and Trump Administrations.  

Many members of the Waters Advocacy Coalition were among the entities who sued EPA and the Corps over their attempts to specify the reach of the Clean Water Act during the Obama and Biden Administrations.  The most recent challenges were paused after the Supreme Court's Sackett decision and EPA's and the Corps' announcements they would issue a new regulation accounting for that monumental decision.

EPA and the Corps have already shared that next attempt with the Office of Management and Budget and EPA and the Corps have said they will publish it early next month.  

This week I spoke with Maydeen Marino of The National Law Journal about what we can expect next and, as you can see below, I predicted that whatever EPA and the Corps do is most certainly going to result in more litigation, likely in the same venues in which EPA's and the Corps' last attempts were challenged, by some of the same members of the Coalition that challenged EPA's and the Corps' last attempt.

I have no doubt that EPA and the Corps have worked hard to try to maintain in their forthcoming regulation as much of the Clean Water Act jurisdiction that they've asserted over the past three decades or so as they credibly can in the face of Sackett.  And I also have no doubt that at least some of the members of the Waters Advocacy Coalition are going to think that EPA and the Corps have gone farther than the Supreme Court allowed.

The most likely areas of disagreement, I think, will relate to EPA's and the Corps' regulatory definitions of "relatively permanent" and "continuous surface connection", two of the requirements for Clean Water Act jurisdiction according to Justice Alito writing for the Court in Sackett.

Since members of the Waters Advocacy Coalition have said all of the things said in their "recommendation" letter before, including in the now paused litigation against EPA and the Corps, and since they know EPA and the Corps have already done what they're going to do (after OMB approval), I'm wondering what they are hoping to gain by resharing those "recommendations" now. 

Whatever EPA and the Corps publish, and however any members of the Waters Advocacy Coalition respond, the one thing that is crystal clear is that the only way we're going to have anything like the Federal Clean Water Act program most of us have been used to for our entire lives is if Congress revises the Act to address the Supreme Court's conclusions about the current Act's limits.   There's no reason to believe that is going to happen any time soon.