White House Launches Review of Final WOTUS Rule

by Hannah Northey, E & E News

EPA’s draft final rule to define “waters of the U.S.,” or WOTUS, is undergoing White House and interagency review, kicking off a high-level comment period for a high-stakes regulation that will ultimately determine which waters and wetlands fall under federal jurisdiction.

The Biden administration’s move to redefine which waters fall under federal jurisdiction is the latest chapter in a decades –long saga that’s involved shifting regulations, lawsuits and intense lobbying that’s ensnared environmentalists, the agricultural sector and developers.

The White House received EPA’s proposal recently, according to RegInfo.gov, the

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EPA released a proposal of the rule late last year, which formally scrapped the Trump-era WOTUS regulation and reinstated pre-2015 Clean Water Act rules that were also updated to reflect Supreme Court decisions (E&E News PM, Nov. 18, 2021).

The agency is also planning to address additional changes in a separate, second rulemaking that will consider further refinements and take into account additional stakeholder engagement and implementation considerations, scientific developments and environmental justice values.

The second rulemaking will also be informed by the experience of implementing the pre-2015 rule, the 2015 Clean Water Rule and the 2020 Navigable Waters Protection Rule, according to RegInfo.gov. It’s unclear when EPA will issue the second proposed rule.

But Kevin Minoli, former EPA acting general counsel now practicing at Alston & Bird, said the bulk of the definition the Biden administration is hoping to see will be hammered out in the first definition.

“The first one is very close to what they’re going to end up at the end of this process,” he said. “The big change is coming in this rule.”

While the interagency review can take longer than 30 days, it’s likely the government will keep as close to a month as possible given that the Supreme Court is poised to take up a big wetlands case, Sackett v. EPA, in early October.

The case is about Chantell and Michael Sackett’s long battle to build a house on their Idaho property without federal permits. How the court decides that case could shape EPA’s authority and ability to regulate isolated wetlands, tributaries and ephemeral streams as WOTUS under the Clean Water Act (Greenwire, January 24. 2022).

Minoli said the finalization of EPA’s first rule will quell any arguments that the Trump-era Navigable Waters Protection Rule is still in place in some areas of the country. ▫

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