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WOTUS rule implementation postponed until 2019
Kirill Abbakumov   on Friday, December 1, 2017 at 12:00:00 am

On November 5, 2017, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) proposed extending the implementation of the 2015 Waters of the United States (WOTUS) rule until 2019. EPA and Corps have sent their proposal to the Office of Management and Budget for review, after which it will be published as a proposed rule in the Federal Register and open to public comment. This would give the agencies more time to work through the rulemaking process to repeal and replace the 2015 WOTUS rule, which is currently under a nationwide stay pending a Supreme Court decision early next year.

WOTUS is a term used in the Clean Water Act to define those waters that require federal Clean Water Act permits. In 2015, the Obama Administration finalized a new WOTUS rule that would have expanded federal jurisdiction over county-owned infrastructure, including county-owned ditches, channels, culverts and stormwater systems.

After the rule was finalized, lawsuits were filed in both appeals and district courts arguing that EPA and Corps had overreached in their authority to regulate certain bodies of water. The 6th Circuit Court of Appeals ruled that it had jurisdiction – a ruling that has since been challenged to the U.S. Supreme Court. It is expected that, when the Supreme Court rules on court jurisdiction, the stay may be lifted across much of the country, at which time the 2015 rule will be implemented.

As a result of a February 28 executive order titled, Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States Rule”, EPA and Corps are withdrawing and replacing the 2015 rule.

Current timeline for the WOTUS rule:

  • Phase ZERO has been sent to the White House Office of Management and Budget for review. Once the review is finished, it will be published in the Federal Register and the public will be permitted to comment on it for roughly 30 days. The rule is expected to be finalized in early 2018.
  • Phase ONE, to repeal the 2015 rule and reinstate previous regulations, has begun. The public comment period for this closed on September 27, and a final rule is expected by Spring 2018.
  • Phase TWO would replace the 2015 WOTUS rule. The timing for this action is uncertain, although it is likely tied to the rule’s withdrawal in Spring of 2018.