EPA, Army Corps finalize “Waters of the U.S.” applicability date

The U.S. Environmental Protection Agency and U.S. Army Corps of Engineers on Jan. 31 finalized a rule adding an applicability date to the 2015 Clean Water Rule.

The EPA said the 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 will be two years after the Jan. 31 action is published in the Federal Register, during which time both agencies will continue the process of reconsidering the 2015 rule.

The rule seeks to preserve the status quo and provide regulatory continuity for all stakeholders while EPA and the Corps engage in a rulemaking to consider whether to repeal the 2015 rule and, if so, how to replace the 2015 rule with a new well-founded, protective, and clear definition of WOTUS.

The 2015 rule, which redefined the scope of where the Clean Water Act applies, had an effective date of Aug. 28, 2015. A U.S. Court of Appeals for the Sixth Circuit nationwide stay halted implementation of the rule.

The U.S. Supreme Court on Jan. 22 issued a unanimous decision in which the high court ruled that challenges to the Waters of the U.S. rule must first go through federal district courts, rather than going straight to the circuit court level.

The Supreme Court found that the WOTUS rule is not covered by the Clean Water Act’s Section 509 judicial review provision, which lists categories of EPA actions that circuit courts have exclusive power to review. The Supreme Court directed the Sixth Circuit to dismiss petitions for review of the WOTUS rule for lack of jurisdiction. As a result, the Sixth Circuit’s nationwide stay of the WOTUS rule will no longer be in place.

For additional details about WOTUS and the American Public Power Association’s position on WOTUS, click here.