With the signatures of two Federal District Court Judges, one in Texas and one in North Dakota, EPA's eighth attempt to determine the jurisdictional reach of the Clean Water Act is now the law in only 24 of our not so United States.  This leaves EPA's most recent attempt at a durable rule in about the same place as its sixth attempt before it was replaced by EPA's seventh attempt.

Put another way, President Biden's veto defending EPA's eighth attempt against Congress's vote to repeal it has preserved that regulation in less than half of the fifty States.

Some of you may recall that this is pretty much exactly what I predicted last month in a blog, the most controversial aspect of which was my attribution to Sir Winston Churchill of a maxim my Harvard friends thought should have been attributed to Professor George Santayana (https://insights.mintz.com/post/102i8ya/waters-of-the-united-states-and-winston-churchill).

What's next? Most likely nothing until the Supreme Court releases its opinion in Sackett v. EPA which could happen any day now. For the reason I shared last month, I continue to think that a majority of the Justices of our nation's highest court will take that opportunity to pull the plug on the "significant nexus" basis for Clean Water Act jurisdiction that is a cornerstone of the already not very durable EPA regulation. That would put an end to the currently pending judicial proceedings in Texas and North Dakota, not to mention the currently dismissed nearly identical case in Kentucky, and send EPA back to the drawing board.

Less likely, but still real, is the possibility that the Supreme Court decides Sackett on a basis that avoids the "significant nexus" question for now. In that case, we're on our way to the Fifth Circuit Court of Appeals in the Texas case and the Eighth Circuit Court of Appeals in the North Dakota case as the longest running controversy in environmental law continues.   It should be clear to all that the only way we'll ever have a durable definition of Waters of the United States is if Congress and the President agree on one..

“The Court finds that the new 2023 Rule is neither understandable nor ‘intelligible,’ and its boundaries are unlimited. Beyond the many problems with the new 2023 Rule recognized by the considered decision of the federal district court in Texas, this Court is of the opinion the 2023 Rule raises a litany of other statutory and constitutional concerns,” Hovland said in his order granting preliminary injunction.