AFS is joining with other science societies to oppose the EPA’s most recent proposal to add an “effective date” to the 2015 rule. We believe that this action is an attempt to amend the Clean Water Rule. AFS believes that any agency action concerning WOTUS—including the effective suspension of the Clean Water Rule—must be supported by peer-reviewed science and a valid economic analysis.
The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) are proposing to amend the effective date of the 2015 Waters of the United States (WOTUS) rule. The agencies are proposing that the 2015 rule would not go into effect until two years after final action on this proposed rule. The EPA and Corps have indicated that they will move quickly to take final action in early 2018. Based on this timeline, the 2015 WOTUS rule would not be effective until sometime in 2020, which would give the EPA another two years to rescind the 2015 rule and promulgate a replacement rule.
The 2015 rule had an effective date of August 28, 2015, but implementation is currently on hold due to a stay imposed by the U.S. Court of Appeals for the Sixth Circuit. A torrent of federal litigation ensued after the Obama administration finalized the 2015 rule. Thirty-one states, many local governments, and private industry filed suit against the EPA and Corps in the Sixth Circuit Court of Appeals, asserting that the rule unconstitutionally expanded the Clean Water Act’s reach and misapplied Justice Anthony Kennedy’s “significant nexus” opinion in the 2006 Rapanos case.
In early 2017, the U.S. Supreme Court agreed to resolve the jurisdictional wrangling and heard arguments in October over which lower court—U.S. federal appeals courts or district courts—would handle challenges to the rule. If the court hands down a decision before a new rule is in place, the stay could be lifted and the 2015 WOTUS rule could become effective, unless another rulemaking has rescinded the rule.
The proposed rule to suspend the 2015 rule was published in the Federal Register on November 22, 2017. The agencies will be collecting public comment on this proposal for 21 days. Comments should be identified by Docket ID No. EPA-HQ-OW-2017-0644 and submitted here by December 13, 2017.
Read the letter submitted by the Consortium of Aquatic Science Societies and others.