Clean Water Act: The Importance of February 2020

UPDATE: The EPA and Corps sent the draft rule to the Office of Management and Budget (OMB) on June 15, 2018. The OMB’s Office of Information and Regulatory Affairs (OIRA) has 90 days to review the proposed rule with other government agencies, but the rulemaking agency or agencies can extend that review indefinitely. The EPA and Corps have not released the document sent to the OMB. The proposed WOTUS rule is anticipated to be published in the Federal Register by August and a Final Rule by November 2019.

ORIGINAL: Jurisdictional Waters of the United States (WOTUS), which includes wetlands, are regulated by the Clean Water Act (CWA) under the authority of the United States Army Corps of Engineers (USACE) and the United States Environmental Protection Agency (EPA). On June 29, 2015, the USEPA and the USACE (agencies) published a final rule defining the scope of waters protected under the CWA known as the Clean Water Rule: Definition of “Waters of the United States” (Final Rule) in the Congressional Federal Register (CFR § 37053 (2015)). This Final Rule drastically expanded the limits of jurisdictional waters.

The 2015 Final Rule has seen an ON, then OFF, then ON-Again history of the last few years. The 2015 Rule became effective on August 28, 2015. Immediately the U.S. District Court for the District of North Dakota enjoined the applicability of the 2015 Rule in the 13 States challenging the 2015 Rule in that court. In response to petitions filed by eighteen (18) separate states, including Texas, the U.S. Court of Appeals for the Sixth Circuit issued a nationwide Order of Stay for the 2015 Rule on October 9, 2015 pending completion of judicial review (Sixth Circuit I.O.P. 32.1(b)). Petitioners contended that the Final Rule expands the regulatory jurisdiction originally defined in the CWA by the Supreme Court without satisfying the requirements of the Administrative Procedures Act (APA).

Beginning in July 2017, the EPA and the USACE initiated the formal notice to begin the two-step APA process intended to review and revise the Final WOTUS Rule (Congressional Federal Register (CFR § 37053 (2015)) as directed in Presidential Executive Order 13778. On January 22, 2018, the Supreme Court held that a U.S. Court of Appeal does not have original jurisdiction to review challenges to the 2015 Rule.

The Federal Register (83 FR 5200) published on February 6, 2018 provides the effective date of a Final WOTUS Rule. The notice follows the January 22, 2018 Supreme Court decision lifting the STAY on the rule in Texas. A Final WOTUS Rule, to be determined by formal rule-making process, will become effective on February 6, 2020 according to 83 FR 5200 “Definition of Waters of the United States” – Addition of an Applicability Date to 2015 Clean Water Rule. With this process, the agencies intend to maintain the status quo by adding an applicability date to the 2015 Rule and thus providing continuity and regulatory certainty for regulated entities, the States and Tribes, and the public while the agencies continue to consider possible revisions to the 2015 Rule.

What does this mean to you? The manner wetlands and waters (including mapped and unmapped tributaries) are to be evaluated is STATUS QUO until the effective date of February 6, 2020. This gives you 2 short years to work under the current defined rules to get projects assessed, fully documented using the Corps of Engineers manual that they contain non-jurisdictional areas, potentially verified by the agency (if appropriate for the project), and graded/cleared to avoid potential negative and expensive changes.

Contact Susan Alford, REM, President of LJA Environmental for more information.