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EPA Proposes to Amend Effective Date of WOTUS Rule

On November 16, 2017, the U.S. Environmental Protection Agency and U.S. Department of the Army (“Agencies”) unveiled a proposed rule to amend the effective date of the 2015 rule defining “waters of the United States,” commonly referred to as the “WOTUS Rule.” The WOTUS Rule, which defines the scope of federal jurisdiction under the CWA, was adopted by the Agencies under the Obama Administration in a 2015 Rule titled “Clean Water Rule: Definition of ‘Waters of the United States” (80 Fed. Reg. 27054, June 29, 2015).  As explained in previous alerts circulated in May 2016, March 2017, and July 2017, the WOTUS Rule has far-reaching implications for project developers across energy, water, agricultural, construction, and transportation sectors.

This rule proposes to amend the effective date of the WOTUS Rule until two years after this proposed action is finalized and published in the Federal Register.  According to the Agencies, the proposal to amend the effective date will provide clarity and predictability to the regulated public during the Agencies’ two-step rulemaking process intended to review and revise the definition of “waters of the United States.”

Background

The WOTUS Rule, as finalized in 2015, had an effective date of August 28, 2015.  Implementation of the WOTUS Rule is currently on hold as a result of the Sixth Circuit’s nationwide stay of the rule on October 9, 2015 and the Supreme Court’s pending decision on the question of whether the court of appeals has original jurisdiction to review challenges to the rule.  In re E.P.A., 803 F. 3d 804, 807(6th Cir. 2015).  The Supreme Court held oral arguments Oct. 11, 2017 and could issue a decision resolving the question of the court of appeal’s jurisdiction anytime.

Concurrently with pending court review, the Agencies are engaged in a two-step rulemaking process to reconsider the WOTUS Rule.  The first step proposes to rescind the definition of “waters of the United States” and re-codify the previous definition.   In Step 2, the Agencies are working to substantively reconsider the definition of “waters of the United States.”

Agency Rationale

The Agencies note that if the Supreme Court were to decide that the Sixth Circuit lacks original jurisdiction over challenges to the WOTUS Rule, the Sixth Circuit case would be dismissed and its nationwide stay of the 2015 WOTUS Rule would expire, leading to possible inconsistences, uncertainty, and confusion as to the regulatory regime that would be in effect pending a final substantive Step 2 rulemaking.   

The Agencies suggest that the proposed rule could establish a clear regulatory framework that would avoid the possible inconsistencies, uncertainty and confusion that could result from the issuance of a Supreme Court ruling while the Agencies are simultaneously engaged in the process of reconsidering the rule under the 2 Step rulemaking process.  The Agencies suggest that a two-year extension of the effective date of the WOTUS Rule would ensure that, during such potential interim period, the scope of CWA jurisdiction will be administered exactly the way it is now and would ensure that there is sufficient time for the regulatory process for reconsidering the definition of “waters of the United States” to be fully completed.

Next Steps

The Agencies will be accepting public comment on this proposal for 21 days after publication in the Federal Register.   

© 2019 Van Ness Feldman LLP

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About this Author

Brent Carson, Van Ness Feldman Law Firm, Seattle, Energy, Environment and Real Estate Law Attorney
Partner

Brent provides strategic advice and critical support to clients with complex land development and real property issues. He has in-depth knowledge of the local, state, and federal land use and environmental entitlements process including comprehensive plan amendments, rezones, master plans, development agreements, wetlands and in-water construction permits, endangered species consultation, mitigation banks, shorelines, SEPA/NEPA compliance, road vacations, and impact fees. His litigation practice includes defense of environmental enforcement actions and development...

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Joseph B. Nelson, Van Ness Feldman Law Firm, Washington DC, Environmental and Energy Law Attorney
Partner

Joe has over twenty years of experience providing counsel to clients involved with linear and site-specific energy, natural resource, and water resource projects as they navigate the myriad regulatory and environmental laws governing project development and operations. His practice includes representation of clients before federal agencies and commissions including the Federal Energy Regulatory Commission, U.S. Fish and Wildlife Service, National Marine Fisheries Service, National Park Service, U.S. Bureau of Reclamation, Department of Energy and Department of the Interior.

As permitting counsel, Joe provides strategic advice and representation before federal agencies on environmental review and permitting matters under the Endangered Species Act, Clean Water Act, National Environmental Policy Act and other environmental statutes. In addition, he serves as regulatory counsel to public and investor-owned electric utilities before the Federal Energy Regulatory Commission.

A common element to Joe’s practice is his ability to synthesize the in-depth, technical components of project development with the complex regulatory requirements necessitated by environmental laws.  In addition, Joe has significant experience litigating before state and federal courts in California, the District of Columbia, and Texas, and before administrative boards such as the Interior Board of Contract Appeals.

202-298-1894
Duncan M. Greene, Van Ness Feldman Law Firm, Seattle, Environmental and Real Estate Law Attorney
Partner

Duncan assists private and public clients with a wide range of land development and real property issues. He provides strategic advice and support to clients in planning and permitting large, complex projects in the energy, transportation, and natural resource sectors. He has in-depth knowledge of local, state, and federal land use and environmental entitlements processes including NEPA/SEPA compliance, wetlands and in-water construction permits, endangered species consultation, shorelines approvals, mitigation banks, development agreements, and planning and zoning...

206.623.9372
Associate

Sheri Spang's practice focuses on energy and environmental matters.  She assists electric industry clients on issues relating to the development and acquisition of power projects, market-based rate authorizations, interconnection agreements, and various regulatory matters and rulemakings before the Federal Energy Regulatory Commission (FERC).  With regard to environmental matters, Sheri assists in advising clients on various regulatory compliance matters and rulemakings before the Environmental Protection Agency (EPA), with special emphasis on the Clean Air Act and Clean...

202-298-1831
Jenna R. Mandell-Rice, Van Ness Feldman Law Firm, Seattle, Environmental, Real Estate and Litigation Law Attorney
Associate

Jenna’s practice focuses on land use and environmental law.  She regularly counsels clients on the siting and permitting of development projects and has experience counseling clients on land use, environmental, and natural resource matters under the Growth Management Act, SEPA/NEPA, Clean Water Act, and the Endangered Species Act.

Prior to joining the firm, Jenna was an associate in K&L Gates’ Washington DC office. During law school, she served as a law clerk for the Council on Environmental Quality (CEQ), an office within the Executive...

206-623-9372