Inside EPA reports that EPA Assistant Administrator Radhika Fox has told Congress that we can expect a new Waters of the United States regulation in September. Assistant Administrator Fox promises that the new regulation will fully account for the substance of the Supreme Court's decision in Sackett v. EPA. If that's what happens then I don't know how anyone could possibly expect EPA and the Army Corps of Engineers to react any faster to what the nation's highest court thought of the underpinnings of EPA's now moribund eighth attempt to determine the reach of the Clean Water Act. After all, the Sackett decision was just before Memorial Day, and a thoughtful response is promised just after Labor Day.
Assistant Administrator Fox also told Congress that EPA and the Corps may invoke a rarely invoked provision of the Administrative Procedures Act to forego public comment on its next attempt to put the decades long controversy over the reach of the Clean Water Act behind them. If there was ever a case in which that provision might be invoked, this would seem to be it. After all, everyone has had, and pretty much everyone has taken, the opportunity to comment on EPA's and the Corps' Waters of the United States regulations during each of the Obama, Trump and Biden Administrations. That's a lot of public comments. What else could there be to say? And what is the chance that whatever regulation is promulgated doesn't end up in multiple courts regardless of its substance so we might as well get to it.
Speaking of the courts, yesterday the Eighth Circuit Court of Appeals joined the Fifth and Sixth Circuits in pausing the last of three appeals challenging EPA's and the Corps' most recent Waters of the United States regulation. It is good to see the Judicial Branch giving the Executive Branch a chance to respond to the nation's highest court.
So, by sometime in September, the Corps should be back in the business of issuing jurisdictional determinations, applying a "final" regulation establishing the reach of the Clean Water Act, at least until the next litigation or Congress finally does its job. I still think the Corps could be acting in the meantime but at least the end of the pause is in sight.
the Sackett decision also affects other provisions. She noted that “the justices spoke very clearly on the definition of adjacency -- that adjacency [means] you must have a direct surface connection. That is a definition of adjacency that is narrower than currently in the 2023 rule, so we are going to address that too.” She added, “The agencies are committed to following the law. We are committed, as we have been from the beginning, to clear and durable implementation, and we will not waver from that response.”
https://insideepa.com/daily-news/fox-says-epa-will-use-good-cause-authority-speed-wotus-rulemaking
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