EPA Submits New Final Definition of WOTUS to OMB
The Environmental Protection Agency has submitted a new final definition of "waters of the United States" (WOTUS) to the Office of Management and Budget. This revised definition aims to replace the Obama-era definition, which the Supreme Court struck down in 2020. The EPA is working to issue a final rule by September, but the process will likely face legal challenges.?
The revised definition seeks to narrow the scope of WOTUS, returning to a more limited definition that was in place before 2015. It excludes many ephemeral streams, ditches, and wetlands previously considered WOTUS under the Obama administration's rule.
EPA asserts that the new definition is based on the best available science and will provide greater clarity and predictability for landowners and businesses. But environmental groups have expressed concern, arguing that it will weaken protections for wetlands and other water bodies.
EPA has also said the new rule will redefine "adjacency" in light of the Sackett decision, which requires a direct surface connection between waterbodies and wetlands.?
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OMB will now review the definition and decide whether to approve it. OMB has 90 days to review the new definition before publishing it in the Federal Register. If OMB approves the definition, it will be published in the Federal Register and take effect 60 days later. If OMB does not approve the definition, the EPA will have to revise or withdraw it.
EPA has bypassed the notice and comment process typically required for most rulemaking. At a recent House hearing, EPA Assistant Administrator Radhika Fox informed lawmakers that the agency planned to invoke its authority to skip the proposal step for "good cause." According to the Administrative Procedure Act, agencies can implement final rules without soliciting comments on a proposed version in limited cases, such as when the agency believes that the notice-and-comment process would be "impracticable, unnecessary, or contrary to the public interest."
Given the significance of the WOTUS definition, the contentious nature of the issue, and the lack of public notice and comment, it is highly likely that the new regulation will face legal challenges in the courts.