On June 27, 2017, the Environmental protection Agency (“EPA”) and the U.S. Army Corps of Engineers issued a proposed rule redefining the “waters of the United States,” which are the bodies of water subject to federal EPA regulation under the Clean Water Act. The EPA’s proposed rule would rescind the current definition of “waters of the United States,” which was adopted in 2015 but subsequently stayed by the Sixth Circuit, and re-codify it with the pre-2015 definition. Issuance of this proposed rule constitutes the first step of a two-step process outlined in President Trump’s February 28th Executive Order aimed at rescinding EPA’s 2015 expansion of the Waters of the United States rule (“WOTUS”). In a future second step, the agencies will issue a separate proposed rulemaking to establish a new definition consistent with Justice Scalia’s plurality opinion in Rapanos v. United States. Such a revision could reduce the number of bodies of water subject to federal regulation under the Clean Water Act and return regulatory power of waterways to the states.
A comment date will be set once the rule is published in the Federal Register.
The pre-publication version of the rule is available here: https://www.epa.gov/sites/production/files/2017-06/documents/wotus_prepublication_version.pdf
If you have questions, please contact Derek Dyson
or Gregory Jones