EPA’s WOTUS overhaul will trail Supreme Court ruling

By Hannah Northey, Sean Reilly | 06/22/2022 01:37 PM EDT

A general view of the Green Cay Nature Center and Wetlands on March 31, 2021 in Boynton Beach, Florida.

A general view of the Green Cay Nature Center and Wetlands on March 31, 2021, in Boynton Beach, Fla. Bruce Bennett/Getty Images

The Supreme Court will decide the fate of the nation’s most contentious Clean Water Act rule before EPA releases regulations on the matter, according to a new regulatory blueprint released yesterday.

Details about EPA’s plans for “waters of the U.S.,” or WOTUS — a regulation that determines the federal government’s reach under the Clean Water Act — were tucked inside the Biden administration’s sprawling regulatory agenda for this coming spring, which laid out planned executive branch actions on everything from water to air and energy policy, for months to come (E&E News PM, June 21).

EPA doesn’t plan to release a proposed rule to redefine WOTUS until November 2023, with no date specified for finalizing the rule, according to the Unified Agenda.

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While timing of EPA’s regulatory definition of what constitutes a federally protected water and wetland has been in flux, a spokesperson for the agency told E&E News in January that the proposal would be unveiled late this year (E&E News PM, Jan. 3).

The definition will arrive after the Supreme Court rules in a case that has the potential to significantly limit the Biden administration’s authority over the nation’s waters (Greenwire, Jan. 24). The high court will hear arguments in Sackett v. EPA on Oct. 3 and decide the case by early summer 2023.

EPA did not immediately respond when asked about the agenda and the timing of the court’s ruling.

On the Clean Air Act front, in a step with far-reaching implications for the Biden administration’s efforts to curb greenhouse gas releases, EPA intends to unveil a new set of long-term emission standards for cars and light-duty trucks by early next year. It is also moving ahead with parallel reviews of ambient air quality limits for two key pollutants and plans an overhaul of a widely used set of permitting regulations, the agenda shows. Delayed until next year, however, are the rollouts of draft carbon regulations on new and existing power plants (Energywire, June 22).

Water regulations

EPA’s timing for hammering out a final definition of WOTUS shows the agency may be waiting to see how the Supreme Court decides on the controversial Sackett case, said Larry Liebesman, a senior adviser at Dawson & Associates, which specializes in permitting, and a former senior trial attorney in the Department of Justice’s environmental division.

The case revolves around a request from Idaho landowners Chantell and Michael Sackett for the Supreme Court to revisit its splintered 4-1-4 ruling in Rapanos v. United States (Greenwire, Jan. 24).

In the meantime, EPA is still moving forward with finalizing a first phase of the regulation that reinstates a pre-2015 definition of WOTUS, Liebesman noted.

“They’re frankly waiting to see what the Supreme Court’s going to do that would give them some guidance on how to approach the second-phase rulemaking,” he said. “Looking at November 2023, that’s probably going to be five, six months after the Supreme Court rules, I would suspect.”

Liebesman called EPA’s decision “prudent” given the final definition will need to incorporate the court’s opinion. Liebesman — through a separate law practice — filed a brief in support of the Sacketts on behalf of the National Stone, Sand and Gravel Association and the American Road and Transportation Builders Association.

Other long-term regulatory actions on EPA’s plate include a final Lead and Copper Rule, as well as a rule that would clarify requirements around states and tribes assuming permitting authority under the Clean Water Act, slated to be finalized in 2024. Also listed as long term without a definitive release date is a potential rule EPA is mulling to better protect U.S. water systems from cyberattacks.

EPA also indicated near-term action, including finalizing a recently released rule tied to state and tribal Clean Water Act permit reviews by next year. The agency intends to provide more flexibility as states and tribes review permits for projects like pipelines and mines, but the current version of the rule is also raising questions about the role of WOTUS and climate (Greenwire, June 13).

Air regulations

Last December, EPA issued a set of new car and light-duty truck emission standards running through model year 2026 that were billed as the toughest in U.S. history (Greenwire, Dec. 20, 2021).

The agency now plans to propose a successor set of regulations, running at least through model year 2030, by next March, according to a synopsis the administration released yesterday. The proposal would cover both emissions of greenhouse gases and pollutants like nitrogen dioxide and would be developed in coordination with the Transportation Department. The final regulations are set for completion in March 2024.

The transportation sector is the nation’s single largest source of planet-warming emissions. Consequently, the White House wants half of all new cars and light-duty trucks to be zero-emission vehicles by 2030.

Meanwhile, EPA officials are fleshing out their schedule for advancing long-anticipated changes to national soot standards, saying that a proposed rule is coming this August followed by the final version in March of next year.

A key agency advisory panel has recommended a range of potential cuts to both the annual and daily exposure limits for soot, formally known as fine particulate matter. EPA previously said only that the draft rule would be released this summer, with the final rule due next spring.

And despite a related panel’s recent decision to hit the pause button, EPA still plans to issue a fresh proposal to either keep or change its ground-level ozone standards by next April. The agency is no longer, however, providing a deadline for finalizing that review despite previously saying it would conclude by the end of 2023 (E&E News PM, Nov. 5, 2021).

The Clean Air Scientific Advisory Committee Ozone Panel this month extended its evaluation of EPA’s preliminary finding that no change to the existing 70-parts-per-billion ozone limit is warranted (E&E News PM, June 10).

After calling off two days of scheduled meetings this month, the panel instead intends to reappraise the science underlying that finding. “We are aware that the agency is under a tight timeline … and we are committed to working expeditiously and maintaining the highest standard of scientific integrity,” Lianne Sheppard, the panel’s chair, said in a letter last week to EPA Administrator Michael Regan.

Ozone, the main ingredient in smog, is a lung irritant linked to asthma attacks in children.

Soot inhalation is tied to an array of health problems, including premature death for people with preexisting cardiovascular and respiratory diseases.

By next March, the agency’s air office also plans to release a draft update to the portion of New Source Review permitting regulations that apply to “minor” emission sources such as oil and gas drilling operations.

Most of those rules for state and local air agencies “have been unchanged for more than 40 years,” according to a synopsis. The rulemaking would aim “to bring the older rules up to modern standards, improve the accountability of the minor NSR program to address the underlying requirements of the Clean Air Act, and set minimum requirements for consistent implementation while continuing to allow agencies flexibility in some areas of their program.” The newly released agenda does not give a date for the overhaul’s completion.

Reporter Pamela King contributed.

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