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EPA and Army Finalize “Waters of the United States” Applicability Date

By: Growing America Staff
Posted: February 1, 2018

“That rule would have put a stranglehold on ordinary farming and ranching by treating dry ditches, swales and low spots on farm fields just like flowing waters. Without today’s action, countless farmers and ranchers, as well as other landowners and businesses, would risk lawsuits and huge penalties for activities as common and harmless as plowing a field,” said AFBF President Zippy Duvall. “Today’s announcement is part of a measured and thoughtful process to provide regulatory certainty to farmers and ranchers while the agencies continue the important work of withdrawing and rewriting the unlawful 2015 WOTUS rule. America’s farmers value clean water as much as anyone, and they work hard every day to protect it. But they deserve clear rules, too.”

The National Cattlemen’s Beef Association agreed. “Today’s action from EPA and the Army Corps ensures the 2015 WOTUS Rule never comes back,” said NCBA Chief Environmental Counsel Scott Yager. “We thank Administrator Pruitt and his team for this prompt action which protects agricultural producers across the country and we look forward to the next steps — repeal and replace.”

“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.

This final rule is separate from the two-step process the agencies are currently taking to reconsider the 2015 Rule. The public comment period for the Step 1 rule proposing to rescind the 2015 Rule closed in September 2017, and those comments are currently under review by the agencies. EPA and the Army are also in the process of reviewing input from state, local, and tribal governments and other stakeholders as they work to develop a proposed Step 2 rule that would revise the definition of “waters of the United States.”