With the electronic 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 eighth attempt at durability about the same place its sixth attempt ended up before it was replaced by EPA's seventh attempt.

In other words, President Biden's veto of Congress's attempt to repeal EPA's most recent Waters of the United States regulation has preserved that regulation in less than half of the fifty States.

Some of you may recall that this is 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. 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 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.