Talking Points

WOTUS And The White House’s Unified Agenda: 5 Dates You Need To Know

Last week, the White House submitted its Spring 2018 Unified Agenda of Regulatory and Deregulatory Actions(Unified Agenda) to the Office of Management and Budget. The agenda “reports on the actions administrative agencies plan to issue in the near and long term” and reflects the administration’s “commitment to fundamental regulatory reform and a reorientation toward reducing unnecessary regulatory burdens on the American people.”

The Unified Agenda offers some important updates about the status of the EPA and Army Corps’ rulemaking on the “waters of the United States” (WOTUS) rule. Here are the key dates you need to know:

May 2018: The EPA and Department of the Army are expected to publish a supplemental notice of proposed rulemaking on withdrawal of the 2015 WOTUS rule, which is the first step in the two-step regulatory process. This supplemental notice was submitted to OMB on April 11 and is currently undergoing interagency review. According to a report in The Daily Caller, the supplemental notice will clarify the scope of step-one rulemaking.

November 2018: The EPA and Department of the Army are expected to release a final rule on recodification of the pre-2015 WOTUS rule.

August 2018: The EPA and Department of the Army are expected to publish a notice of proposed rulemaking on a replacement WOTUS definition, which is the second step in the two-step process underway following thePresident’s Executive Order last year instructing a review of the 2015 WOTUS rule and potential replacement, “as appropriate and consistent with law.”

September 2019: The EPA and Department of the Army are expected to publish a final rule on the WOTUS definition.

February 6, 2020: Absent a final revised WOTUS rule or other development, the 2015 rule will go into effect on February 6, 2020, pursuant to EPA and Army Corps rulemaking amending the applicability date of the 2015 rule by two years. Separate from the two-step rulemaking process now underway, that rule maintains the status quo while the agencies reconsider the WOTUS definition. The applicability date took on new significance after the Supreme Court ruled that courts of appeals do not have jurisdiction to review challenges to the 2015 WOTUS rule.