The Environmental Protection Agency and U.S. Department of the Army (the agencies) finalized a rule adding an applicability date to the 2015 Rule defining “waters of the United States.” The final rule published in the Federal Register on February 6 , 2018. The 2015 Rule will not be applicable until February 6, 2020. This amendment gives the agencies the time needed to reconsider the definition of “waters of the United States.”This rule is available on the Government Printing Office’s FDsys website and on Regulations.gov in Docket No. EPA-HQ-OW-2017-0644.The agencies have also prepared a memorandum for the record to provide the public with information about the potential economic impacts associated with this action. This memorandum, “Consideration of Potential Economic Impacts for the Final Rule: Definition of ‘Waters of the United States’ – Addition of Applicability Date to 2015 Clean Water Rule,” is also available in the docket.
- Final Rule: Definition of “Waters of the United States” – Addition of Applicability Date to 2015 Clean Water Rule (PDF)
- Memorandum to the Record: Consideration of Potential Economic Impacts for the Final Rule: Definition of “Waters of the United States” – Addition of Applicability Date to 2015 Clean Water Rule (PDF)
“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 2015 Rule, which redefined the scope of where the Clean Water Act applies, had an effective date of August 28, 2015. The U.S. Court of Appeals for the Sixth Circuit’s nationwide stay halted implementation of the 2015 Rule. But last week the Supreme Court determined that the U.S. Courts of Appeals do not have original jurisdiction to review these challenges and, therefore, the Sixth Circuit lacked authority to issue a stay. Given uncertainty about litigation in multiple district courts over the 2015 Rule, this action provides much needed certainty and clarity to the regulated community during the ongoing regulatory process.
On February 28, 2017, President Trump issued Executive Order (EO) 13778, “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” As EO 13778 stated, it is in the national interest to ensure that the nation’s navigable waters are kept free from pollution, while simultaneously promoting economic growth, minimizing regulatory uncertainty, and respecting the roles of both Congress and States under the Constitution.
Additional information on this final rule: www.epa.gov/wotus-rule