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Volume XI, Number 268

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EPA and the Corps of Engineers are Heading Down the Waters of the United States Regulatory Road This Summer. Will They Ever Reach Their Destination?

Friday, EPA and the Army Corps of Engineers announced that between now and Labor Day they will be listening to stakeholders as they kick off what will be the eighth attempt to resolve by regulation the reach of the Federal Clean Water Act.   

We learned that EPA and the Corps plan not one but two sets of regulations. The first will be a “foundational rule” to restore the regulatory definition of Waters of the United States to what it was prior to the Obama Administration EPA rule with "updates" to reflect what EPA and the Corps think the Supreme Court has resolved in the meantime. Needless to say, there is likely to be considerable controversy about what, if anything, that might be.

The second set of regulations would “refine this regulatory foundation and establish an updated and durable” definition of Waters of the United States. 

One has to admire EPA's and the Corps' optimism but one also has to wonder how anyone could possibly think that not one but two rulemakings could be completed between now and January 2024, even if one ignores the effect of the certain multi-district litigation over the first "foundational rule".

In the meantime, Inside EPA reports a few Republican Senators are already complaining about the EPA and Corps rulemaking that hasn't even begun yet. They've filed legislation that would make the Trump Administration EPA rule the law of the land that is certain not to go anywhere in a Democrat-controlled Congress. 

Though most think I'm hopelessly naïve for suggesting it, perhaps bipartisan infrastructure legislation might pave the way for comprehensive Clean Water Act legislation in time for its 50th anniversary next year, or at least sooner than the eighth, or ninth, regulatory attempt to develop a "reasonable, effective, and durable definition" of the reach of the Clean Water Act.

The longest-running controversy in environmental law continues.

"In the announcement, EPA and the Corps said they “are committed to developing a reasonable, effective, and durable definition of WOTUS that protects public health, the environment, and downstream communities while supporting economic opportunity, agriculture, and other industries."

©1994-2021 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XI, Number 214
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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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