June 23, 2021

Volume XI, Number 174

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The Darkest Hour is Just Before Dawn -- Day 2 of the Biden Administration's Attempt to Define Waters of the United States

Lara Beaven of Inside EPA reports this morning on reactions to EPA's announcement that it will make an eighth attempt to determine the jurisdictional reach of the Clean Water Act.  Earlier this week EPA asked a Federal District Court Judge in Massachusetts to rule on an NGO challenge to the seventh attempt to stand by while the Biden Administration takes its turn at the plate.   

EPA Principal Deputy Assistant Administrator Radhika Fox submitted an affidavit in support of the EPA motion that strongly suggests that EPA's "middle of the road" on this issue is much closer to the Obama Administration side of the street than the Trump Administration side of the street or, for that matter, the Bush and Clinton Administration sides of the street.

So, where does that leave us?  Proponents of the Trump Administration rule are complaining that the Biden Administration is going to restore the Obama Administration rule.  Proponents of the Obama Administration rule are complaining that EPA hasn't yet reversed the Trump Administration rule. Rightly no one, and I mean no one, is on the record expressing any belief that the eighth attempt to determine the reach of the Clean Water Act by regulation will be the charm.

In the meantime, litigation continues, and more is promised.  Ms. Beaven's reporting includes premature promises of litigation over whatever EPA comes up with next by United States Senators Barasso and Cramer.  Since they are lawmakers, why aren't these Senators threatening legislation?   Is it really impossible for Congress to do its job and find the "middle of the road" on this issue?  That you likely consider that a very silly question strongly suggests that we still have quite a ways to go before dawn.    

EPA Administrator Michael Regan’s pledge to craft a new “middle ground” policy defining “waters of the United States” (WOTUS) is facing significant doubts as supporters of the Trump-era definition threaten legal action over Biden administration overhaul plans while environmentalists slam the officials over the pace of any changes. - Lara Beaven

©1994-2021 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XI, Number 162
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About this Author

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

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.

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