July 23, 2021

Volume XI, Number 204

July 23, 2021

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July 22, 2021

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July 21, 2021

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At Least We Have One Clean Water Act Rule for Everyone... For Now

Many of you will remember that the sixth time EPA attempted to resolve the reach of the Federal Clean Water Act by regulation, during the Obama Administration, legal challenges caused it to be the case that the Obama Administration rule was the Federal law in half of the states, and the prior rule was the Federal law in the other half of the states.     

Of course, that flies in the face of the entire notion of Federal law. 

Following a decision by a South Carolina District Court Judge this week, it seems less likely we'll see that again, even temporarily, with respect to EPA's seventh attempt to resolve the reach of the Federal Clean Water Act by regulation during the Trump Administration.

This time EPA has asked the Courts in South Carolina and California and Massachusetts to dismiss pending challenges of the Trump Administration regulation because EPA is going to make an eighth attempt to do what the Obama and Trump Administrations failed to do.  So far the Courts are doing as EPA has asked, over the objections of those who are challenging the regulation, as reported comprehensively by Lara Beaven of Inside EPA.

And so, for now, the Trump Administration Clean Water Act regulations are the law of the entire land even though the Biden Administration EPA says that they're causing significant ecological harm and need to be repealed and replaced.    

Some day, but probably not for at least two years, we'll have new regulations.  Why anyone thinks those won't also be challenged is beyond me, but at least for now, we have one rule for everyone even if it isn't what EPA says the rule should be.

"'Having considered Defendants’ Motion for Voluntary Remand Without Vacatur and the parties’ responses thereto, the Court hereby GRANTS the Motion,' Judge Bruce Howe Hendricks of the U.S. District Court for the District of South Carolina says in a July 14 order in South Carolina Coastal Conservation League (SCCCL), et al. v. Regan, et al.

'Accordingly, the Navigable Waters Protection Rule: Definition of 'Waters of the United States' 85 Fed. Reg. 22,250 (Apr. 21, 2020) is remanded without vacatur. All other pending motions are hereby denied as moot and this action is dismissed,' the order continues."

©1994-2021 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XI, Number 202

About this Author

Jeffrey R. Porter, Environmental Attorney, Mintz Levin, Risk Analysis Lawyer

Jeff leads the firm’s Environmental Law Practice. He is also a member of the firm’s Policy Committee. For 23 years, he has advised clients regarding complex environmental regulatory compliance and permitting issues, including issues relating to air and water discharges and hazardous waste storage and disposal. In 2011 and 2012, the firm received the Acquisition International Legal Award for “US Environmental Law Firm of the Year.” The awards celebrate excellence and reward firms, teams and individuals for their contribution to client service, innovation and commitment to quality.