Wednesday, the U.S. Environmental Protection Agency (EPA) and U.S. Department of the Army (Army) finalized a rule adding an applicability date to the 2015 Clean Water Rule (the 2015 Rule). This rule provides clarity and certainty about which definition of “waters of the United States” (WOTUS) is applicable nationwide in response to judicial actions that could result in confusion.
The new applicability date will be two years after the Jan. 31 action is published in the Federal Register, during which time both agencies will continue the process of reconsidering the 2015 Rule.
“Today, EPA is taking action to reduce confusion and provide certainty to America’s farmers and ranchers,” EPA Administrator Scott Pruitt said. “The 2015 WOTUS rule developed by the Obama Administration will not be applicable for the next two years while we work through the process of providing long-term regulatory certainty across all 50 states about what waters are subject to federal regulation.”
“We are committed to transparency as we execute the Clean Water Act Section 404 regulatory program. The Army and EPA proposed this rule to provide the regulated public clarity and predictability during the rule-making process,” acting assistant secretary of the Army (Civil Works) Ryan Fisher said.
The 2015 Rule, which redefined the scope of where the Clean Water Act applies, had an effective date of Aug. 28, 2015. The U.S. Court of Appeals for the Sixth Circuit’s nationwide stay halted implementation of the 2015 Rule, but last week, the Supreme Court determined that the U.S. courts of appeals do not have original jurisdiction to review these challenges and that, therefore, the Sixth Circuit lacked authority to issue a stay. Given uncertainty about litigation in multiple district courts over the 2015 Rule, this action provides much-needed certainty and clarity to the regulated community during the ongoing regulatory process.
The final rule is separate from the two-step process the agencies are currently taking to reconsider the 2015 Rule. The public comment period for the Step 1 rule proposing to rescind the 2015 Rule closed in September 2017, and those comments are currently under review by the agencies. EPA and the Army are also in the process of reviewing input from state, local and tribal governments and other stakeholders as they work to develop a proposed Step 2 rule that would revise the definition of “waters of the U.S.”
American Farm Bureau Federation president Zippy Duvall applauded the action. “That rule would have put a stranglehold on ordinary farming and ranching by treating dry ditches, swales and low spots on farm fields just like flowing waters. Without today’s action, countless farmers and ranchers, as well as other landowners and businesses, would risk lawsuits and huge penalties for activities as common and harmless as plowing a field,” Duvall said.