Federal agencies propose adding “applicability date” to 2015 Waters of the U.S. rule

On November 22, 2017, the Environmental Protection Agency and the Department of the Army released a proposed rule adding an applicability date to the 2015 Rule defining the extent of federal jurisdiction under the Clean Water Act (82FR 55542-55547). The applicability date would be two years after the date of a final rule under this proposed rulemaking effort.

The effective date of the 2015 Rule originally was August 28, 2015, but in October 2015, the U.S. Court of Appeals for the Sixth Circuit stayed the 2015 Rule nationwide pending further action by the court. The U.S. Supreme Court is currently reviewing the question of whether the court of appeals has original jurisdiction to review challenges to the 2015 Rule. 

On July 27, 2017, the agencies initiated the first step in a two-step process intended to review and revise the definition of “waters of the United States” under an Executive Order 13778 signed in February 2017 (82 FR 34899- 34909).

In the first step, the agencies proposed rescinding the definition of “waters of the United States” in the 2015 Rule and re-codifying the previous definition. In a second step, the agencies intend to pursue a public notice-and-comment rulemaking in which they would conduct a substantive re-evaluation of the definition of “waters of the United States.”

The agencies indicate that adding an applicability date to the 2015 Rule would allow them “to provide, for an interim period, greater regulatory certainty about the definition of ‘waters of the United States’ in effect while they continue to work on the two-step rulemaking process” (82 FR 55542).

Comments on the November 22 proposed rule to add the applicability date must be received on or before December 13, 2017.