On January 31, 2018, EPA and the U.S. Department of the Army finalized a rule delaying the effective implementation date of a controversial rule, promulgated by the Obama Administration in 2015, titled “Clean Water Rule: Definition of ‘Waters of the United States’” (WOTUS). The final rule was published in the Federal Register on February 6, 2018 and establishes an applicability date of February 6, 2020.
The 2015 WOTUS rule, which originally had an effective date of August 28, 2015, significantly expanded the scope of water bodies in the United States that would be subject to regulation and NPDES permitting requirements under the Clean Water Act. The rule was widely deemed to be “regulatory overreach” by a diverse range of industry and agricultural interests. Shortly after its promulgation, the WOTUS rule became the subject of numerous judicial challenges filed in several federal district and appellate courts over concerns that the expanded and far-reaching definition of “waters of the United States” as adopted by EPA exceeded the Agency’s authority vested under the Clean Water Act.
On October 9, 2015 the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay of the WOTUS rule. However, on January 22, 2018 the U.S. Supreme Court determined that original jurisdiction over the rule resided with the district court, rather than the appellate court, and as such, the Sixth Circuit lacked the authority to issue a stay. Consequently, the stay issued by the Sixth Circuit appellate court was lifted except in 13 states (Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming) that were parties to a suit filed in the U.S. District Court for the District of North Dakota. On August 27, 2015 the North Dakota district court granted a preliminary injunction against implementation of the WOTUS rule pending a decision by the Supreme Court.
EPA states that the delay in implementation of the WOTUS rule is necessary given the confusion surrounding the Supreme Court’s decision on the existing nationwide stay issued by the Sixth Circuit and its finding that original jurisdiction over legal challenges of the WOTUS rule rests at the federal district court level. The Agency emphasizes that its final rule will eliminate the uncertainty that has been caused by litigation over the WOTUS rule in multiple federal district courts. EPA explains that its recent rule will simply maintain the legal status quo by retaining the definition of “waters of the United States” that existed prior to promulgation of the WOTUS rule, thus providing continuity for the regulated community.
Meanwhile, EPA continues to move forward with a substantive rulemaking effort to rescind the 2015 rule and revise the definition of “waters of the United States.” EPA’s rulemaking efforts were initiated in response to Executive Order (EO) 13778 issued by President Donald Trump on February 28, 2017 titled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” EO 13778 directs the EPA Administrator and the Assistant Secretary of the Army for Civil Works to publish for notice and comment a proposed rule rescinding or revising the WOTUS rule in keeping with the Administration’s stated goal of promoting economic growth and minimizing regulatory uncertainty.