The U.S. Environmental Protection Agency (EPA) and U.S. Department of the Army have finalized a rule adding an applicability date to the 2015 Clean Water 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 this Feb. 1 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,” said EPA Administrator Scott Pruitt. “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.”
Richard Thorpe, president of the Texas and Southwestern Cattle Raisers Association (TSCRA), issued a statement Thursday applauding the EPA and Administrator Pruitt “for their action to formally delay the overreaching Obama-era WOTUS rule. The delay will give administration officials time to craft a new version of the rule. We look forward to working with EPA to ensure the replacement does not harm the men and women who raise our beef.”
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 the Supreme Court determined in January that 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. Given the 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.
Thursday’s 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 United States.”
To read more about the WOTUS rule at the EPA, click or tap here