EPA Proposes Delay of WOTUS Rule until 2020
November 20, 2017 •
On Nov. 16, the U.S. Environmental Protection Agency (EPA) and Department of the Army Corps of Engineers proposed the delay of the effective date of the 2015 rule redefining the “Waters of the United States” (WOTUS) under the Clean Water Act. Because of the expanded WOTUS definition, the federal government was given jurisdiction over some of the smallest waterways in the country.
EPA and the Army are now proposing to postpone the effective date of the 2015 rule until sometime in 2020, at the earliest. The effective date of the 2015 rule was Aug. 28, 2015 until the rule was stayed nationwide by the U.S. Court of Appeals for the Sixth Circuit on Oct. 9, 2015.
The U.S. Supreme Court is currently reviewing the question of whether the Court of Appeals has original jurisdiction to review challenges to the 2015 rule. To make sure there are no complications because of the U.S. Supreme Court’s review, EPA and the Army are now proposing this effective date postponement, which would officially change the Aug. 28, 2015 effective date.
On February 28, 2017, the President signed an Executive Order, “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” According to EPA, with this proposed rule, the agencies intend to maintain the status quo by proposing to amend the effective date of the 2015 Rule and thus provide continuity and regulatory certainty for regulated entities, the States and Tribes, agency staff, and the public while the agencies continue to work to consider possible revisions to the 2015 Rule.
On Aug. 28, ACA submitted comments to EPA supporting the agency’s joint July 27 proposed rule with the Department of the Army Corps of Engineers initiating the first step in a two-step process intended to review and revise the definition of WOTUS. Notably, EPA’s November 16 proposal is distinct from the July 27 proposal that would retract the broad 2015 expanded WOTUS definition.
During the 2014-2015 rulemaking process, ACA opposed EPA and the Army’s efforts to dramatically expand the scope of federal authority over water and land uses across the United States. ACA supports EPA and the Army Corps of Engineers’ efforts to effect changes to the rule that will provide continuity and certainty for regulated entities, the States, agency staff, and the public.
The agencies’ initial step proposes to apply the definition of WOTUS as it is currently being implemented, which is informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding practice. In a second step, the agencies will pursue notice-and-comment rulemaking in which the agencies will conduct a substantive re-evaluation of the definition of WOTUS.
The October 2015 appellate stay decision was the result of several lawsuits consolidated into a multi-district case, including suits brought against EPA challenging the rule by Georgia, West Virginia, Alabama, Florida, Kansas, Kentucky, South Carolina, Utah, Wisconsin, Oklahoma, Ohio, Michigan, Texas, Louisiana and Mississippi, as well as the U.S. Chamber of Commerce, the American Farm Bureau Federation, and the American Petroleum Institute.
The appellate decision followed just weeks after Judge Ralph Erickson of the U.S. District Court for the District of North Dakota granted a preliminary injunction for 13 states on Aug. 27, 2015, to prevent the rule from taking effect Aug. 28. Those 13 states — Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, New Mexico, Nevada, North Dakota, South Dakota and Wyoming — argued that EPA went outside its authority because the final rule violates state sovereignty, asserting jurisdiction over waters that are subject to state rather than federal control.
Those states prevailed because they sufficiently demonstrated that their claim is likely to succeed on the merits and that the states would suffer irreparable harm without injunctive relief. “The risk of irreparable harm to the states is both imminent and likely,” Erickson was quoted in the Washington Post, and noted that the rule would require “jurisdictional studies” of every proposed natural gas, oil or water pipeline project in North Dakota.