It's official: WOTUS rule takes effect Aug. 28

By Philip Brasher

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WASHINGTON, June 26, 2015 - The Obama administration's new definition of the “waters of the United States” regulated by the Clean Water Act will be formally published on Monday and will take effect Aug. 28.

The administration publicly released the final WOTUS rule in May but waited until Friday, after Congress broke for the July 4 recess, to provide notice that the rule would be published in the Federal Register on Monday. The rule, which is expected to be challenged in court, takes effect 60 days after that.

The rule, which was developed in response to a pair of Supreme Court rulings, re-defines what ditches, wetlands, streams and other features are subject to federal regulation under the anti-pollution law.

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The final version was more specific about some features that would be exempt from regulation, including underground drainage from farmland, but it also makes significant changes in definitions for tributaries and regulated wetlands. 

The rule also sets July 13 as the start of a 60-day window for judicial review. There could be multiple lawsuits challenging the rule although it is not clear whether they will be filed at the district court or appellate level, said Lowell Rothschild, an environmental law specialist with Bracewell and Giuliani.

The publication of the rule will increase pressure on congressional Republicans to do something about it. They are already moving bills to kill the rule or, through appropriations measures, to halt the rule's implementation starting Oct. 1, the beginning of fiscal 2016. But none of the measures will be easy to enact.

The Senate Environment and Public Works Committee on June 10 split 11-9 along party lines in approving a bill (S 1140) that would require the administration to write a new rule in consultation with state and local governments. The bill would set limits on what wetlands could be regulated and alter the way tributaries are identified.

A similar bill (HR 1732passed the House in May, but neither measure is likely to become law, given the certainty of a presidential veto and broad Democratic opposition.

Provisions in both the Senate and House versions of fiscal 2016 appropriations bills for the EPA would block implementation of the rule as would a provision in the House-passed spending bill for the Army Corps of Engineers. However, the path forward for the appropriations measures isn't clear either, because Senate Democrats are refusing to allow any of them to move until Republicans agree to raise spending levels. Moreover, the White House has repeatedly cited the WOTUS riders in threatening vetoes of the spending bills. 

In its statement of administration policy on the House Interior-Environment spending bill (HR 2822), the White House said the WOTUS rider “would disrupt the Administration's current efforts to clarify the scope of CWA, hamstring future regulatory efforts, and create significant ambiguity regarding existing regulations and guidance.”

Don Parrish, senior director of regulatory relations for the American Farm Bureau Federation, said the effective date adds to the urgency for congressional action.

“We stand by our analysis that the final rule not only fails to provide further clarity it actually makes the rule worse for farmers and ranchers.”

Lawmakers who “cast their lot on EPA's flimsy promises” and supported the rule “will now face the heat from folks back home,” he said.

The Farm Bureau argues that the final rule is more expansive than it was when it was proposed in 2014. 

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