Sam Hess of Inside EPA is reporting that Democrats in the House of Representatives and the Senate might be ready to work on legislation ending the longest running controversy in environmental law – the decades long battle over the jurisdictional reach of the Federal Clean Water Act.
Since the Obama Administration, this battle has been primarily between the Federal Judiciary and EPA. The one time that Congress got involved was last spring when it invoked the Congressional Review Act in an attempt to repeal EPA's ninth attempt to determine the reach of the Clean Water Act by regulation. President Biden vetoed that attempt. As I told my colleagues in the American College of Environmental Lawyers when presenting on Clean Water Act issues last week, we'd be better served if Congress actually rolled up its sleeves and legislated instead of telling other branches of the Federal Government that they've misjudged Congress's intention.
Anyway, speaking of one branch of the Federal Government telling another branch of the Government that they've misjudged Congress's intention, just weeks after President Biden's veto, the Supreme Court largely accomplished what Congress could not with its landmark opinion in Sackett v. EPA making the reach of the Clean Water Act shorter than it had been for decades.
As I wrote on the golden anniversary of the Clean Water Act over a year ago, the only lasting peace in this critically important, longest running controversy in environmental law will be if Congress and the President of the United States negotiate a mutually acceptable outcome. For the outcome to be mutually acceptable, it would have to reflect what we've learned over the past half century since Congress overrode President Nixon's veto to make the Clean Water Act law.
I don't think that's going to happen any time soon, but Ms. Hess's report suggests that the Sackett decision and the certain litigation over EPA's tenth attempt to resolve this controversy have finally gotten Congress's attention. We'll see if that amounts to anything.
Jeffrey Porter, chair of the environmental law practice at Boston-based firm Mintz, Levin, Cohn, Ferris, Glovsky, and Popeo, has argued that EPA’s failure to define some key terms “will mean more uncertainty as the longest running controversy in environmental law continues. Only Congress can end it.” Larsen, who is now set to be a primary sponsor of the WOTUS bill, similarly said after the Biden administration released its rule that “ultimately Congress needs to step in and correct the egregious misreading of the Clean Water Act by the Supreme Court to ensure communities continue to have access to clean and safe water.”
https://insideepa.com/daily-news/house-democrats-ready-wotus-bill-reverse-damage-sackett-ruling
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