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Volume XIII, Number 35

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Just When You Thought the Waters of the United States Saga Couldn’t Get Any Stranger

Lara Beaven of Inside EPA reports on the standoff between the State of Florida and the United States Environmental Protection Agency over the "current definition" of Waters of the United States for the purpose of determining the reach of the Federal Clean Water Act.

EPA is in the midst of its eighth attempt to define Waters of the United States by regulation. In the meantime a basic principle of administrative law dictates that the Trump Administration EPA regulations remain in force except where they've been stricken down by a federal court. That's why, when the Obama Administration EPA regulations were challenged in court, they were the law in half the states (where they were upheld or not challenged) but not in the other half of the states where Courts of Appeal or District Courts struck them down. Ultimately the Trump Administration EPA rescinded the Obama Administration EPA's regulations and we had the same Federal law in all fifty states for a few months.

Which brings us to the Biden Administration EPA's turn at the Waters of the United States plate.

The Biden Administration EPA decided that two or three District Courts striking down the Trump Administration EPA's regulations was good enough and announced it would apply a definition of the Waters of the United States provided by a smorgasbord of Agency guidance and Supreme Court decisions before the Obama Administration while it was going through its own rule making.

EPA made clear that it expected others to turn back the Waters of the United States clock as well even though the Trump Administration EPA's regulations have not yet been formally rescinded.

The State of Florida, which has been delegated by EPA the authority to administer the relevant sections of the Federal Clean Water Act says thanks but no thanks.   Florida intends to continue to apply the Trump Administration EPA's regulations over EPA's objections which it may very well have the legal right to do since those regulations haven't been stricken down in the Eleventh Circuit or the State of Florida. 

What happens next? Well a federal court with jurisdiction in Florida could strike down the Trump Administration EPA's regulations which would then tie the State of Florida's hands. In the meantime, uncertainty will continue to reign from coast to coast until the Biden Administration EPA completes its turn at the Waters of the United States plate, if not longer.

“Currently, the U.S. EPA is engaged in rulemaking to draft a new WOTUS rule despite the U.S Supreme Court’s decision to review the WOTUS definition in Sackett v. EPA,” the spokeswoman says. “While there remains substantial confusion at the federal level as to the WOTUS definition, Florida remains committed to administering Florida’s Clean Water Act programs consistent with applicable law and to maintaining its cooperative partnership with the Federal Agencies to ensure maximum protection of Florida’s water resources.”

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©1994-2023 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XII, Number 45
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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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