EPA Floats Proposal to Push Back Water Rule to 2020

By Amena H. Saiyid

A proposed delay of a regulation defining the jurisdictional scope of the Clean Water Act would help avoid confusion among home builders, contractors, and miners, according to the Trump administration.

The Environmental Protection Agency and U.S. Army Corps of Engineers proposed to push back the effective date of the currently stayed 2015 Waters of the U.S. rule from Aug. 28, 2015, to at least 2020.

Announced Nov. 16, the proposal is separate from a two-step rulemaking the EPA and Corps are pursuing to “provide certainty and consistency to the regulated community,” the agencies said.

Waters and wetlands that fall under Clean Water Act jurisdiction are protected from pollution by various regulatory regimes, including federal permits, oil spill prevention requirements, and state water quality certifications.

Both agencies said they will take comment on the proposal for 21 days after its publication in the Federal Register and “plan to move quickly to take final action in early 2018.” The proposed delay would push the effective date until two years after the delay is final, which would be sometime in 2020.

The stay on the Obama-era Waters of the U.S. (WOTUS) rule by the U.S. Court of Appeals for the Sixth Circuit could be lifted if the U.S. Supreme Court decides a federal district court is where challenges to the regulation should be heard instead, according to the proposal.

Both agencies already are in the midst of a two-step process that first involves withdrawing the WOTUS rule, followed by a rewrite designed to make sure the 2015 rule remains off the books while the Trump administration rewrites the rule to its liking.

The final decision on withdrawal won’t be released until March, while the rewritten regulation won’t come out before the end of 2018, Dennis L. Forsgren, the agency’s deputy assistant administrator for water, said Nov. 15 at a water law seminar in Savannah, Ga.

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