On November 5, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) proposed extending the implementation date of the 2015 “Waters of the U.S.” (WOTUS) rule until 2019. EPA and Corps have sent their proposal to the Office of Management and Budget for review, after which it will be published as a proposed rule in the Federal Register and opened to public comment for roughly 30 days. This would give the agencies more time to work through the rulemaking process to repeal and replace the 2015 WOTUS rule, which is currently under a nationwide stay pending a U.S. Supreme Court decision early next year.
WOTUS is a term that is used in the Clean Water Act (CWA) to define those waters (and conveyances) that require federal Clean Water Act permits. The term has been around since the 1970’s and is most commonly associated with CWA Section 404 dredge and fill permits. In 2015, the Obama Administration finalized a new WOTUS rule that would have expanded federal jurisdiction over county-owned infrastructure, including county-owned ditches, channels, culverts and stormwater systems.
Almost immediately after the rule was finalized, lawsuits were filed in both appeals and district courts arguing that EPA and Corps had overreached in their authority to regulate certain bodies of water. However, there was significant debate over which court – district or appeals – even had the authority to hear the case. Ultimately, the 6th Circuit Court of Appeals ruled that they had jurisdiction – a ruling that has since been challenged to the U.S. Supreme Court, which heard oral arguments in the case last month. It is expected that, when the Supreme Court rules on court jurisdiction, the stay may be lifted across much of the country (except for the U.S. District Court of North Dakota, which has issued its own stay that applies to 13 states), at which time the 2015 rule will be implemented.
As a result of a February 28 executive order titled, “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule,” EPA and Corps are withdrawing and replacing the 2015 rule, referred to as Phase 1 and Phase 2, respectively. The proposal to extend the implementation date into 2019 is known as Phase Zero. Here is what we know about the timeline so far:
- Phase ZERO has been sent to the White House Office of Management and Budget for review. Once the review is finished, it will be published in the Federal Register and the public will be permitted to comment on it for roughly 30 days. They hope to finalize a rule in early 2018.
- Phase ONE, to repeal the 2015 rule and reinstate previous regulations, has begun. The public comment period for this closed on September 27, and a final rule is expected by Spring of 2018. NACo submitted comments on this proposed rule, along with the U.S. Conference of Mayors and National League of Cities.
- Phase TWO would replace the 2015 WOTUS rule. The timing for this action is uncertain, although it is likely tied to the rule’s withdrawal in Spring of 2018.
As a result of NACo’s efforts, EPA has agreed to hold a second follow-up Executive Order 13132 Federalism briefing to discuss the next steps to replace the WOTUS rule. This consultation with the national associations of state and local governments will happen in early Spring 2018. NACo has been engaging with Congress and the administration throughout the rulemaking process regarding counties’ concerns with the 2015 WOTUS rule and its impact on county-owned public safety infrastructure, and will continue to work closely with the administration and Congress as this process unfolds to ensure the needs and interests of America’s counties are reflected in any final rule.