EPA, Army finalize WOTUS delay rule
On Jan. 31, the U.S. Environmental Protection Agency (EPA) and U.S. Department of the Army finalized a rule adding an applicability date to the 2015 Clean Water Rule (the 2015 Rule), according to a join press release from the two agencies. This rule provides clarity and certainty about which definition of “Waters of the United States” is applicable nationwide in response to judicial actions that could result in confusion. The new applicability date is Feb. 6, 2020, until which time both agencies will continue the process of reconsidering the 2015 Rule.
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. On Jan. 22, the Supreme Court determined the U.S. Courts of Appeals do not have original jurisdiction to review these challenges, and therefore, the Sixth Circuit lacked authority to issue a stay.
The final date of applicability 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 United States.”