Farmers, ranchers and other landowners received good news on Jan. 31 when the U.S. Environmental Protection Agency (EPA) and U.S. Department of the Army (Army) announced that they have finalized a rule adding an applicability date to the 2015 Clean Water Rule commonly known as Waters of the United States or WOTUS. The new applicability date will be two years after the current rule is published in the Federal Register.
A press release from EPA said that during the delay both agencies will continue the process of reconsidering the 2015 rule.
EPA Administrator Scott Pruitt said the action was taken to reduce confusion and provide certainty to America’s farmers and ranchers. “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,” he explained.”
Also commenting on the action, Acting Assistant Secretary of the Army (Civil Works) Ryan Fisher said, “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.”
Ag groups react
The National Cattlemen’s Beef Association applauded the move with Chief Environmental Counsel Scott Yager issuing a statement saying, “Today’s action from EPA and the Army Corps ensures the 2015 WOTUS rule never comes back. 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.”
On behalf of the American Farm Bureau Federation, President Zippy Duvall said his organization applauds the action to delay implementation of the “hopelessly vague 2015 rule that expansively defined ‘waters of the United States.’ 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.”
Duvall added that the 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.”
Recap of actions
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 in late January 2018 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, EPA explained in its press release.
The rule issued Jan. 31 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.”
On Feb. 28, 2017, President Donald Trump issued Executive Order (EO) 13778, “Restoring the rule of law, federalism, and economic growth by reviewing the ‘Waters of the United States’ rule.” EPA’s release explained, “As EO 13778 stated, it is in the national interest to ensure that the nation’s navigable waters are kept free from pollution, while simultaneously promoting economic growth, minimizing regulatory uncertainty, and respecting the roles of both Congress and states under the Constitution.
Additional information on this final rule: www.epa.gov/wotus-rule. — WLJ
