EPA Rule Redefining ‘Waters of the U.S.’ Moves to Final Stage

Agency promises rule out by summer; AGC continues opposition!

The joint rulemaking redefining which waters are jurisdictional under federal Clean Water Act standards, proposed by the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps), has left the agencies and moved to the Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs (OIRA). This is the last stage in the federal rulemaking process where OIRA runs the final rule through interagency review one last time before allowing the rule to be published as final in the Federal Register.

In a practical sense, this means that EPA is sticking to its schedule of finalizing a revised “Waters of the U.S.” definition by summer 2015.  The agencies indicated in a recent blog post that the version of the rule that went to OMB was “shaped by public input.”  However, the statement does not address how it would define terms such as “ditches, “other waters,” “significant nexus” and “tributaries;” only that the agencies are working to clarify those definitions. What is more, the agencies have indicated they are unlikely to allow state co-regulators and other stakeholders an opportunity to review those changes and provide feedback on whether they address the host of concerns identified with the original rule. 

On the legislative front, the U.S. House of Representatives has prepared its bill focusing on the flawed process of the proposed rule. The House legislation would send the rule back to the drawing board and bind the agencies to formal consultation with state & local governments as well as industry stakeholders. That bill recently passed out of committee with AGC support. Senate legislation is expected shortly.

Now that the WOTUS rule has moved to OIRA, OMB staff may meet with industry representatives on the rulemaking, which AGC and its industry allies in the Waters Advocacy Coalition plan to do in the near future.  This comes as OIRA is also in the midst of its final review of the Water Quality Standards rule - AGC and others warned OMB recently about the interaction of the two water rules and resultant impact on the business community.

AGC will continue to coordinate with industry allies to educate the appropriate officials, work to block the issuance of the WOTUS  rule legislatively, watch out for publication of the final rule, and educate its chapters members if/when the rule is finalized.

For more information, please contact Leah Pilconis at or Scott Berry at