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WOTUS UPDATE: EPA & Corps Finalize WOTUS Applicability Date; Delay Implementation to 2020

Earlier today, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers issued a final rule adding an applicability date to the “Clean Water Rule: Definition of ‘Waters of the United States'” (the 2015 WOTUS Rule) of approximately Feb. of 2020---two years after the applicability rule is published in the Federal Register. 

Earlier today, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers issued a final rule adding an applicability date to the “Clean Water Rule: Definition of ‘Waters of the United States'” (the 2015 WOTUS Rule) of approximately Feb. of 2020---two years after the applicability rule is published in the Federal Register. With the applicability rule, the agencies intend to maintain the status quo by adding an applicability date to the 2015 WOTUS Rule and thus providing continuity and regulatory certainty while the agencies continue to consider possible revisions to the 2015 Rule.  The applicability rule became necessary after a US Supreme Court procedural ruling last week that would result in lifting the current nationwide stay of the 2015 WOTUS rule in most states. (See prior AGC updates below.) 
 
The scope of the Clean Water Act will remain consistent nationwide and, for a defined, interim period, remains the same as it was prior to promulgation of the rule in 2015 and as it has been since the 2015 WOTUS Rule was stayed nationwide on October 9, 2015.  According to the applicability rule, the agencies will administer the regulations in place prior to the 2015 Rule, and will continue to interpret the statutory term “waters of the United States” to mean the waters covered by those regulations, as they are currently being implemented, consistent with Supreme Court decisions and practice, and as informed by applicable agency guidance documents.
 
AGC appreciates EPA's and the Corps' quick action to avoid needless regulatory uncertainty and legal risk for countless developers, small businesses, farmers, and other land owners. 
 
The prepublication version of the final applicability date rule is now available:
https://www.epa.gov/sites/production/files/2018-01/documents/wotus_rin-2040-af80_final_frn_prepublication.pdf 
 
Melinda L. Tomaino, LEED® AP
Director, Environmental Services
AGC of America
Direct Phone - (703) 837-5415
tomainom@agc.org 

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