Waters of the U.S. rule gets two-year delay

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Farm and Dairy file photo

WASHINGTON – The U.S. Environmental Protection Agency and U.S. Department of the Army have finalized a rule adding an effective date to the 2015 Clean Water Rule.

The rule is intended to provide clarity and certainty about which definition of “waters of the United States” is applicable nationwide in response to judicial actions that could result in confusion.

The new date will be two years after the action is published in the Federal Register, during which time both agencies will continue the process of reconsidering the 2015 rule.

“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.”

Ryan Fisher, assistant secretary of the Army, said the Army is “committed to transparency” as it executes the Clean Water Act Section 404 regulatory program.

Halting the rule

The 2015 rule, which redefined the scope of where the Clean Water Act applies, had an effective date of Aug. 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.

The 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 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.”

Background

On Feb. 28, 2017, President Donald Trump issued an executive order “Restoring the Rule of Law, Federalism, and Economic Growth” by reviewing the ‘Waters of the United States’ Rule.”

A stern opponent of the rule, U.S. Senator Pat Roberts, R-Kan., Chairman of the Senate Committee on Agriculture, Nutrition and Forestry, held a hearing on the WOTUS rule in the Senate Agriculture Committee and cosponsored bipartisan legislation to repeal the rule in the 114th Congress.

“The Obama Administration’s infamous ‘WOTUS’ rule, which burdened rural America with regulatory red tape, is now pushed back two years,” Roberts said. “This will provide certainty to the regulated community and give EPA time to rewrite the rule while listening to farmers, ranchers, and landowners’ concerns — the very folks who were ignored by the previous administration.”

The American Farm Bureau, which had notoriously urged the government to “ditch the rule,” also applauded the decision.

“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,” said AFBF President Zippy Duvall.

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