The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers proposed a rule to rescind the Obama-era 2015 “Waters of the United States” (WOTUS) rule that defines what streams, wetlands and other wet areas are controlled by the federal government and subject to the permitting requirements of the Clean Water Act. This action (published July 27, 2017) is the first step in a comprehensive, two-step process intended to review and revise the definition of WOTUS consistent with President Trump’s Executive Order on “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”
This first step (when finalized) would re-codify the regulatory text that existed prior to 2015 WOTUS rule. That is currently the controlling law, as a result of the U.S. Court of Appeals for the Sixth Circuit's stay of the 2015 rule. Therefore, this proposed rule does not change current practice with respect to what WOTUS definition applies: The agencies will continue to use the 1986 regulations and applicable jurisdictional guidance (status quo as it existed before the 2015 rule) in making jurisdictional determinations or taking other actions based on the definition of WOTUS.
In a separate rulemaking (step two), the agencies plan to engage in a substantive re-evaluation of the definition of WOTUS. “In a second step, the agencies will pursue notice-and-comment rulemaking in which the agencies will conduct a substantive re-evaluation of the definition of ‘Waters of the United States,’” the pre-publication notice states.
To access all of the agency documents referenced above, click here. For a closer look at AGC’s active advocacy work and frequent coverage of this issue, click here. AGC will respond with written comments, which are due on August 28, 2017. (Submit your comments, identified by Docket ID No. EPA-HQ-OW-2017-0203, at http://www.regulations.gov.)
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