Volume 26, Number 2 ● February 23, 2018
WOTUS 2020 - EPA and Department of the Army Delay Clean Water Rule of 2015
On February 6, 2018, the EPA and Department of the Army published a final rule to the 2015 Clean Water Rule: Definition of ‘Waters of the United States’, adding an applicability date of February 6, 2020. This final rule delays the implementation of the 2015 Rule, and gives the agencies time to re-evaluate the definition of ‘waters of the United States’ (WOTUS). While there would have been little impact to Virginia or Maryland, land developers in other parts of the United States would have faced big changes in the limits of jurisdictional wetlands with the implementation of the 2015 Rule.
This final rule does not change any regulation – the EPA and Army will continue to administer the regulations that were in place prior to the 2015 Rule, as they have been since the U.S. Court of Appeals for the Sixth Circuit stayed the 2015 Rule nationwide on October 9, 2015. The purpose of the final rule is to provide “continuity and certainty for regulated entities, the States and Tribes, agency staff, and the public” as the current administration pursues a two-step review process to ensure that the definition of ‘waters of the United States’ is consistent with the Rule of Law (Executive Order 13778, Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule, February 28, 2017).
Step One of this process involves rescinding the 2015 Rule, effectively accomplished by this final rule delaying the applicability date. The agencies intend to conduct a full re-evaluation of the definition of ‘waters of the United States’ as Step Two of this process, which will include public notice-and-comment rulemaking. The result of the review process will likely be a definition of ‘waters of the United States’ that is less expansive than the 2015 Rule, and potentially even less expansive than the status quo.
Wetland Studies and Solutions, Inc. will continue to monitor the WOTUS review process, and will keep you updated on any opportunities for stakeholders to submit comments as part of the public notice-and-comment rulemaking. If you have questions about the 2015 Rule, WOTUS 2020, or how this review process could affect your projects, please contact Ben Rosner in Virginia or Mike Klebasko in Maryland.