The U.S. EPA and U.S. Army Corps of Engineers have proposed to delay the effective date of the 2015 Waters of the United States (WOTUS) rule which clarifies which waters and wetlands fall under federal jurisdiction. According to the agencies, the delay is necessary to help avoid confusion among home builders, contractors, and miners.

The 2015 WOTUS rule has an effective date of August 28, 2015, but the implementation of the rule is currently stayed nationwide by the Sixth Circuit Court of Appeals. However, the U.S. Supreme Court is currently considering the issue of what court has jurisdiction over challenges to the lawfulness of the WOTUS rule. If it decides the Sixth Circuit does not have jurisdiction, the stay could be lifted, which means the 2015 WOTUS rule could become effective unless another rulemaking has rescinded the rule.

The Trump administration previously proposed to rescind the WOTUS rule and to re-codify the regulatory definition that existed prior to 2015 (Step 1), followed by a second outreach period and rulemaking to propose a new definition of “waters of the United States” (Step 2). The comment period on Step 1 closed on September 27, 2017, and the EPA is in the process of reviewing the comments. According to comments by EPA staff, the EPA likely won’t make a final decision on Step 1 until March 2018, which means the Supreme Court could issue a decision on jurisdiction before the EPA has rescinded the 2015 rule.

The proposal was published in the Federal Register on November 22, 2017. Comments must be received by December 13, 2017. 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 rule and promulgate a replacement rule.