Proposal would delay WOTUS rule for two years


Issue Date: November 29, 2017
By Christine Souza

In an effort to provide more time to reconsider a definition of "waters of the United States," and to prevent ongoing court cases from interfering in that process, federal agencies have proposed to delay the effective date of a controversial WOTUS rule by two years.

The U.S. Environmental Protection Agency and Department of the Army have been working to revise a 2015 WOTUS rule written by the agencies during the Obama administration. The 2015 rule drew widespread criticism from farmers, ranchers, agricultural groups and others, for expanding the agencies' Clean Water Act jurisdiction over water, land and land use.

The rule has been put on hold by courts, and the Trump administration has undertaken to rescind and replace it. In a proposal released last week, the EPA and Army Corps of Engineers proposed that the 2015 WOTUS rule would not go into effect until two years after the Nov. 22 action is finalized and published in the Federal Register.

California Farm Bureau Federation Senior Counsel Kari Fisher said she hopes the two-year period "allows the agencies ample time to properly rewrite the WOTUS rule to avoid over-expansive misapplication of the Clean Water Act while protecting water quality, and providing farmers and ranchers with needed clarity and consistency."

Along with providing the agencies more time on the rule, she said, the delay would prevent the agencies from having to change course abruptly, depending upon how the U.S. Supreme Court rules in a case affecting the rule.

According to Fisher, the agencies' proposal to amend the effective date is likely "a tactical move to pre-empt the 2015 rule from going into effect if the U.S. Supreme Court finds that the appellate courts are not the correct venue."

Implementation of the 2015 rule is currently on hold as a result of a nationwide stay issued by the 6th U.S. Circuit Court of Appeals, but that stay could be affected by the pending Supreme Court case. The 2015 rule is also stayed in 13 states due to a North Dakota district court ruling.

"The Supreme Court heard oral argument last month on what the appropriate court is for the WOTUS challenge, and we are awaiting the court's decision on whether it should be in the U.S. Court of Appeals for the 6th Circuit or the district court," Fisher said. "If the Supreme Court finds that the case should have remained at the district court level, the 6th Circuit stay would go away, and the 2015 rule would go immediately into effect."

Agency officials said the proposed delay in the effective date would provide added time to write the next WOTUS rule.

"This step will allow us to minimize confusion as we continue to receive input from across the country on how we should revise the definition of the 'waters of the United States,'" EPA Administrator Scott Pruitt said.

The acting assistant secretary of the Army, Ryan Fisher, said amending the WOTUS rule's effective date would "help provide clarity and predictability to the regulated public during the rulemaking process," adding that the Army Corps is "committed to implementing the Clean Water Act Section 404 regulatory program as transparently as possible for the regulated public."

In February, President Trump issued an executive order to rescind the 2015 WOTUS rule and develop a revised rule based on an opinion written by the late Supreme Court Justice Antonin Scalia. The opinion took a more narrow view of federal jurisdiction, restricting Clean Water Act jurisdiction to "relatively permanent" waters and wetlands with a continuous surface connection to relatively permanent waters.

The agencies' Nov. 22 proposal is separate from the two-step process the agencies proposed to rescind and rewrite the 2015 rule.

Agencies will be collecting public comment until Dec. 13 on their request for the two-year delay in the effective date, and said they plan to move quickly to take final action in early 2018.

Additional information on the proposal and how to comment may be found at www.epa.gov/wotus-rule.

(Christine Souza is an assistant editor of Ag Alert. She may be contacted at csouza@cfbf.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.