On February 6, 2018, the U.S. Environmental Protection Agency (“EPA”) and the Department of the Army (“Army”) published in the Federal Register a new rule that finalizes an applicability date for the 2015 Clean Water Rule. The applicability date establishes February 6, 2020—two years from publication in the Federal Register—as the date that the 2015 Rule goes into effect. EPA and the Army announced the applicability date in a press release on January 31, 2018.
The 2015 Rule redefined the scope of the federal Clean Water Act to provide clarity and certainty about the definition of “water of the United States.” The rule, however, was controversial, and implementation was stayed by the Sixth Circuit Court of Appeals. The U.S. Supreme Court ruled on January 22, 2018 that the Appellate Courts lack original jurisdiction to review agency rules. Therefore, the Sixth Circuit Court did not have the authority to issue the stay. The applicability date is intended to reduce confusion among the public in light of the stay being rescinded. (For additional background on the 2015 Rule, see “EPA and Army Corps Release Controversial Proposed Rule on the Definition of ‘Waters of the United States,”JOW March 24, 2014; “EPA and Army Corps Finalize Rule Defining ‘Waters of the United States,” JOW June 2015; and “EPA and Army Corps Sued over ‘Waters of the United States’ Rule,” JOW July 2015).
“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.”
“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,” said Acting Assistant Secretary of the Army (Civil Works) Ryan Fisher.
The establishment of an applicability date is separate from the agencies’ two-step process to reconsider the 2015 Rule and is intended to provide certainty while during the rulemaking process.
EPA and the Army are reconsidering the rule under a February 2017 Presidential Executive Order, which holds that “It is in the national interest to ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.” The Executive Order directs the EPA and Administrator and Assistant Secretary of the Army for Civil Works to review the 2015 Rule for consistency with that policy. It also specifies that any further definitions of “navigable waters” are to be consistent with the plurality opinion in the Rapanos case, which holds that the Clean Water Act confers jurisdiction only over “relatively permanent bodies of water,” but not channels that have occasional or intermittent flows. (For more on the Rapanos decision, see “Supreme Court Defines Test for Wetlands,” Water Strategist July/August 2006).
Under step one of the two-step process, EPA and the Army are working to rescind the 2015 Rule and recodify the rules as they existed prior to the 2015 Rule. The Agencies have released a draft rule to make the necessary changes and are now considering the comments received during the public comment period.
Step two involves proposing a new definition that is consistent with the Rapanos decision. The agencies are currently involved in an outreach process. The agencies held public meetings in fall 2017, established an administrative docket to receive recommendations, and initiated consultations with state and local governments and tribes.
Written by Marta L. Weismann