On March 8, 2019, the U.S. Federal Government withdrew its notices of appeal before the U.S. Courts of Appeals for the Fourth and Ninth Circuits regarding lower court decisions enjoining and vacating the agencies’ 2018 Applicability Date Rule for the administration’s interim Waters of the U.S. (WOTUS) rule.
In February 2018, the agencies finalized a rule that would establish an applicability date of February 2020 for the 2015 Rule defining “waters of the United States.” Since then, the U.S. District Courts for the District of South Carolina and the Southern District of Washington enjoined and vacated the 2018 Rule.
In a statement from the U.S. Environmental Protection Agency (EPA) and Department of the Army (Army) to Feedstuffs, the agencies stated they “are disappointed by the district courts’ rulings which leave a confusing patchwork of federal regulations in place across the country. Rather than continuing to litigate the Applicability Date Rule, however, the agencies have decided to focus on the rulemaking actions underway.”
Pursuant to the South Carolina district court’s order, the 2015 Clean Water Rule is in effect in 22 states, the District of Columbia, and the U.S. territories. Parties to the case, including the EPA and the Army, have filed motions appealing the order and seeking a stay of the district court’s decision. “The agencies recognize the uncertainty this decision has created and are committed to working closely with states and stakeholders to provide updated information on an ongoing basis regarding which rules are in place in which states,” EPA noted on its Website.
The agencies are pursuing a two-step rulemaking process in response to the February 2017 Executive Order 13778 calling on the agencies to review the final 2015 Rule and publish for notice and comment a proposed rule rescinding or revising the rule.
“The agencies are currently reviewing the nearly 800,000 public comments received on the first step to rescind the 2015 Rule and re-codify the prior regulations,” the statement added. In addition, the agencies published on February 14, 2019, a proposed rule to revise the definition of WOTUS.
EPA and the Army held a public webcast to help explain the key elements of the proposed "Revised Definition of Waters of the United States" on Thursday, February 14, 2019. The webcast can be viewed here.
EPA and the Army held two public hearing sessions on the proposed "Revised Definition of Waters of the United States" on Wednesday, February 27, and Thursday, February 28, 2019 at The Reardon Convention Center in Kansas City, KS.
In the Administration’s budget request released this week, it stated several significant rulemakings are expected to be completed before 2020 by EPA, including the replacement rule for WOTUS. “In FY 2020, EPA is committed to implementing these rulemakings by providing technical assistance and guidance to states, tribes and regulated entities as they adapt to these changes,” EPA said.