In light of a recent U.S. Supreme Court ruling, the EPA and Army Corps of Engineers (Corps) have issued an applicability rule to clarify the applicability date of the Obama administration’s 2015 Clean Water Rule (CWR) (also called the waters of the United States, or WOTUS, rule). Specifically, the new rule sets the applicability date for the CWR two years after the final applicability rule is published in the Federal Register.
During the two-year interim period, the agencies intend to complete work on their two-step rulemaking to rescind the 2015 CWR (Step One) and then issue a new WOTUS definition (Step Two). In other words, issuance of the applicability rule is not meant to indicate that the definition in the 2015 CWR will in fact be applicable in two years. Instead the current action is intended to provide certainty that the regulations in place before the 2015 rule—the agencies call this the status quo—remain in place and that the statutory term waters of the United States means waters covered by those regulations. The comment period for the proposed Step One rule closed on September 27, 2017, and the agencies are still considering those comments.
No New Requirements
The agencies also want to make it clear that the applicability rule is not part of the two-step process and does not establish any new regulatory requirements; again, it is simply informing federal and state regulatory bodies, the regulated community, and other stakeholders that the 2015 CWR has no practical effect and the pre-CWR will remain in force until the agencies issue new regulations that change the status quo.
Supreme Court Forces Action
The applicability rule follows an opinion in which by the Supreme Court in National Association of Manufacturers v. U.S. Department of Defense ruled unanimously that original jurisdiction to review challenges to the 2015 CWR is with the U.S. district courts, not the U.S. appeals courts. The opinion overturned a nationwide stay of the CWR, which was issued in October 2015 by the U.S. Court of Appeals for the 6th Circuit. A district court in North Dakota has enjoined the applicability of the 2015 CWR in 13 States. However, other district courts refused to rule on challenges in other states pending the outcome of the Supreme Court case. This created the possibility that the 2015 CWR would be applicable in the remaining 37 states once the Supreme Court ruled on original jurisdiction.
The Status Quo
The EPA/Corps had anticipated this situation and had proposed the applicability rule late in 2017 (November 22, 2017, FR). The previous regulatory definitions of WOTUS that the agencies will continue to implement were separately issued in 1977 and are “informed” by 2003 and 2008 guidance documents. During the 1980s, both agencies adopted definitions substantially similar to those in the 1977 regulations, which have remained largely unchanged since they were promulgated.