iSam Hess's report in Inside EPA paints a nuanced picture of the apparently never ending controversy over the reach of the Clean Water Act. I can't help but offer a few reactions.
First, it is just silly to say that EPA's and the Corps of Engineer's revised rule "barely pays lip service" to the Supreme Court's Sackett decision. In their tenth attempt to define "Waters of the United States", EPA and the Corps have abandoned the "significant nexus" foundation of their seventh and ninth attempts. Including because it is hard to reconcile that action with science, that had to be hard for the Agencies.
Third, despite that, there is absolutely nothing that would have been gained by receiving comments on EPA's and the Corps' revised rule. Over the past thirty years, everything that could be said about what the reach of the Clean Water Act might be has been said more times than I can count. That includes not only what was said in all of the briefs challenging the Biden Administration's first WOTUS rule in three different Federal District Courts, but also the unsolicited pre-rule publication comments from the Waters Advocacy Coalition. It is also silly to think that anything the Biden Administration might publish applying the Act won't be challenged in Court so everyone might as well get back to litigating sooner rather than later.
Which brings me to my dream. The Federal Clean Water Act, which celebrated its fiftieth birthday last year, is the only major Federal environmental law which has not been revisited in a serious way since its passage. We've learned a lot over the past half century about protecting our waters and the living things, including us, that rely upon them. But it has been left to the Executive and Judicial Branches of our Federal Government to sort out what to do about that because the third branch of our Federal Government has chosen to criticize the other branches of our government for what they were doing instead of doing its job. Perhaps the legislators complaining in Ms. Hess's article might reach across the aisle and work on a Clean Water Act reauthorization that can pass both houses of Congress. Until that happens, the longest running controversy in environmental law will continue.
GOP lawmakers are charging that the rule does not comport with the Supreme Court’s Sackett opinion, where Justice Samuel Alito reiterated the “relatively permanent” standard that the late Justice Antonin Scalia first articulated in the 2006 ruling in Rapanos v. United States, while eliminating the broader “significant nexus” test that then-Justice Anthony Kennedy had offered in the same ruling. “Unfortunately, the Biden Administration’s revised rule barely pays lip service to the Sackett decision,” Reps. Sam Graves (R-MO) and David Rouzer (R-NC), the chair of the House transportation committee and its water resources and environment subcommittee, respectively, said in an Aug. 29 statement.
