Yesterday President Biden vetoed the Congressional Review Act resolution that would have repealed EPA's eighth attempt to determine the jurisdictional reach of the Clean Water Act. In 1972 Congress overrode President Nixon's veto of the Clean Water Act. No one expects Congress to override President Biden's veto. So EPA's most recent Waters of the United States regulation remains the Federal law in 48 of the 50 United States, for now.   

What's next? 

Well it is certainly possible that a Federal Judge in North Dakota will do what Congress was unable to do. The North Dakota Judge is currently considering a request by the Attorneys General of 24 states to enjoin EPA's most recent Waters of the United States regulation. It wasn't that long ago, during the Obama Administration, that a North Dakota Judge enjoined EPA's sixth attempt to determine the reach of the Clean Water Act. That sixth attempt was replaced by EPA's seventh attempt during the Trump Administration. Needless to say, the Biden Administration EPA's eighth attempt has much in common with the Obama Administration EPA's sixth attempt.

Once the Federal Judges in North Dakota and Texas have rendered their final judgments in the cases before them (the latter has already enjoined EPA's regulation in Texas and Idaho), those judgments will most certainly be appealed to the Eighth and Fifth Circuit Courts of Appeals (a Sixth Circuit appeal in the case recently dismissed by a Federal Judge in Kentucky is more imminent). In the ordinary course it wouldn't be out of the question that one of the cases would reach the United States Supreme Court.

In the meantime, confusion would continue despite President Biden's stated objective in vetoing Congress's resolution.

But the United States Supreme Court has already heard a challenge to the "significant nexus" basis for Clean Water Act jurisdiction that is the foundation of EPA's Waters of the United States regulation. That case, Sackett v. EPA, will be decided any day now. There is a better than 50/50 chance that a majority of our nation's highest court will decide that the "significant nexus" basis for Clean Water Act jurisdiction, created by then Supreme Court Justice Kennedy, isn't authorized by the Clean Water Act. EPA would then have no choice but to go back to the drawing board in a ninth attempt to determine the jurisdictional reach of the Clean Water Act. If you've gotten this far, you know what will likely happen next. More litigation.

The only way out of the Clean Water litigation mess we've endured for over thirty years is for Congress and the President of the United States to negotiate a mutually acceptable outcome to the longest running controversy in environmental law. For the outcome to be mutually acceptable, it would reflect what we've learned about water pollution over the past half century since Congress overrode President Nixon's veto. CERCLA, RCRA, and the Clean Air Act have all been amended by Congress, with the approval of the President, at least once since they became laws. Isn't it long past time for the Clean Water Act to receive the same treatment? Then, for the first time in history, we would have a Clean Water Act bearing a Presidential signature and the certainty President Biden is seeking.

“The 2023 revised definition of ‘Waters of the United States’ carefully sets the bounds for which bodies of water are protected under the Clean Water Act [CWA]. It provides clear rules of the road that will help advance infrastructure projects, economic investments, and agricultural activities -- all while protecting water quality and public health,” Biden said in an April 6 veto message to the House of Representatives. He emphasizes that the resolution would “leave Americans without a clear definition” of WOTUS, contributing to uncertainty that would threaten economic growth, including for agriculture, local communities, and downstream communities. “Therefore, I am vetoing this resolution,” Biden concludes."