Seyfarth Synopsis: The Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (USEPA) finalized a rule moving the applicability date to the Obama-era Waters of the United States (WOTUS) rule to February 6, 2020, two years in the future. 83 Fed. Reg. 5200 (Feb. 6, 2018).

The WOTUS rulemaking has been frought with controversy and has generated well over 1-million public comments.

We have previously blogged on the WOTUS rulemaking. See Executive Order on Restoring the Rule of Law … by Reviewing the “Waters of the United States” Rule, EPA and Army Corps of Engineers Propose to Rescind Obama Era Rule Redefining “Waters of the United States”, EPA Publishes Final Rule Expanding Definition of “Waters of the United States” Under the Clean Water Act, Proposed Rule on Definition of “Waters of the United States” Under the Clean Water Act, and New Definition of “Waters of the United States”?

The now-final applicability rule extends the applicability date of the Obama-era 2015 WOTUS Rule to February 6, 2020, two years beyond today’s publication of the final rule in the Federal Register. USEPA claims that this extension “provides clarity and certainty about which definition of “waters of the United States” is applicable nationwide in response to judicial actions that could result in confusion.”

USEPA also reiterated that the applicability rule is separate from the ongoing two-step process the Agencies are currently undertaking to reconsider and potentially revise the 2015 WOTUS Rule. The comment period for Step 1 of the reconsideration closed in September, 2017, receiving just under 700,000 comments. Meanwhile, the agencies are still reviewing the 1.1+ million comments received from the public for the 2015 Obama-era WOTUS Rule. USEPA and the Corps are also in the process of holding “listening sessions” with stakeholders to assist the Agencies in developing a proposed Step 2 rule that would again revise the definition of “waters of the United States.”