June 29, 2022

Volume XII, Number 180

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EPA follows the first rule of holes in its eighth attempt to determine the reach of the Clean Water Act

EPA has announced that the second part of its eighth attempt to define the reach of the Clean Water Act will be delayed until November of 2023.  At the same time EPA announced it will move forward with finalizing part one of that attempt this fall.  That happens to be exactly the same time that the Supreme Court will be hearing oral argument in Sackett v. EPA, the nation's highest court's most recent attempt to define the reach of the Act.

Of course the first rule of holes is to stop digging and kudos to EPA for at least partially following that rule by delaying the second part of its most recent effort to resolve the longest running controversy in environmental law by almost two years to see how the Supreme Court affects what is possible.

EPA says part two of its rulemaking will be informed by "the experience of implementing" part one.   That "experience" will most certainly include defending the litigation that part one will provoke.   

EPA doesn't mention the possibility that Congress might act to resolve the controversy it created a half century ago in the meantime which is also a safe bet.

This effort will also be informed by the experience of implementing the pre-2015 rule, the 2015 Clean Water Rule, the 2020 Navigable Waters Protection Rule, and the 2022 Sackett Supreme Court decision.

https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202204&RIN=2040-AG13

©1994-2022 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XII, Number 173
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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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617-348-1711
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