WOTUS Action Taken

EPA Wants to Extend Effective Date of WOTUS by Two Years

Todd Neeley
By  Todd Neeley , DTN Staff Reporter
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The U.S. Environmental Protection Agency wants to change the effective date of the 2015 waters of the United States rule to allow for a complete rewrite. (DTN/Progressive Farmer file photo by Jim Patrico)

OMAHA (DTN) -- The U.S. Environmental Protection Agency wants to prevent the controversial 2015 waters of the United States, or WOTUS, rule from taking effect while the agency undertakes a complete rewrite, proposing to extend the effective date of the rule by two years.

The rule, developed by former President Barack Obama's administration, remains held up in 13 courts nationwide and faces a date in the U.S. Supreme Court.

The EPA and the U.S. Army Corps of Engineers are preparing a notice for the Federal Register, which would then trigger a 21-day public comment period. The move would give the agencies time to continue stakeholder meetings across the country ahead of a complete rewrite.

"Today's proposal shows our commitment to our state and tribal partners and to providing regulatory certainty to our nation's farmers, ranchers and businesses," EPA Administrator Scott Pruitt said in a statement.

"This step will allow us to minimize confusion as we continue to receive input from across the country on how we should revise the definition of the waters of the United States."

In the meantime, the agencies have embarked on a temporary proposed rule to revert back to the WOTUS rule prior to 2015. The 2015 rule redefined the scope of the Clean Water Act.

The U.S. Court of Appeals for the Sixth Circuit in Cincinnati originally placed a national hold on the Clean Water Act rule in 2015. That stay, however, could be affected by a pending case before the Supreme Court on questions of jurisdiction on a number of legal challenges.

Agriculture, other industry groups and state governments across the country alleged the WOTUS rule expanded federal jurisdiction to waters not traditionally protected by the Clean Water Act. Even prior to the completion of the 2015 WOTUS rule, farmers and ranchers faced uncertainty as to which waters were considered jurisdictional. So far, neither Congress nor the EPA has been able to make the law more understandable.

The EPA announced it would attempt to better define "navigable waters" in what is expected to be a two-part effort. The current proposal would revert the rule to pre-2015, before the EPA finalized the WOTUS rule.

The second part of the agency's plan includes then re-writing the rule. As part of that effort, the agency already has reached out to governors in all 50 states to seek input.

Pruitt has been holding a series of closed-door meetings with agriculture interest groups, state and federal government representatives and others across the country.

The EPA and the Corps of Engineers have launched a process that includes "deliberations and outreach" as part of revisiting the rule. The EPA, for example, has asked for input from governors across the country.

In a statement, Ryan Fisher, acting assistant secretary of the Army, said the agencies are committed to transparency on drafting a new rule.

"The Army, together with the Army Corps of Engineers, propose this rule with EPA to help continue to provide clarity and predictability to the regulated public during the rule making process," he said.

"We are committed to implementing the Clean Water Act Section 404 regulatory program as transparently as possible for the regulated public."

Todd Neeley can be reached at todd.neeley@dtn.com

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Todd Neeley