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EPA and Corps of Engineers Take Another Step to Roll Back “Waters of the United States” Definition and Issue a New Proposed Rule

The United States Environmental Protection Agency and United States Army Corps of Engineers last week took another step toward rolling back their 2015 proposed definition of “waters of the United States” (WOTUS). On November 22, 2017, the agencies published in the Federal Register a new proposed regulation to delay the effective date of the 2015 WOTUS rule until two years from the date of final action on the new proposal. The agencies seek comments until December 13, 2017, on their new November 22 proposal, so stakeholders who wish to comment have limited time to do so.

By way of background on the WOTUS rule, on June 29, 2015, the agencies published in the Federal Register regulations to implement their broader and more stringent WOTUS definition. The 2015 WOTUS rule was to have taken effect in 2015, but the Sixth Circuit Court of Appeals stayed the rule’s effective date while litigation about the scope of the rule proceeded through the courts. The Supreme Court granted certiorari and this fall heard oral arguments on whether the Sixth Circuit has original jurisdiction to hear challenges to the WOTUS rule. The November 22 proposal by the agencies, if made final, will maintain the status quo on the pre-2015 WOTUS definition even if the Sixth Circuit’s stay is dissolved.

An equally important aspect of the November 22 proposed regulation is its role as another step in the agencies’ efforts under the Trump Administration to rescind the 2015 WOTUS definition. On July 27, 2017, the agencies proposed a regulation they call the “Step One Rule” to rescind the 2015 WOTUS definition and replace it on an interim basis with the definition in effect before the 2015 revision. The Step One Rule has been issued for notice and comment, the comment period has closed, and the agencies are considering issuing the Step One Rule as a final regulation. In a Step Two proposal to follow, the agencies plan to substantively consider a new regulatory definition for WOTUS.

If the November 22 proposal is made final, the pre-2015 WOTUS definition and its regulatory regime will continue while the agencies reconsider the 2015 WOTUS rule.

Persons who wish to submit public comments on the November 22 proposal can do so until December 13 at www.regulations.gov by referring to Docket ID No. EPA-HQ-OW-2017-0644.

This post was drafted by Jim Price, an attorney in the Kansas City, MO office of Spencer Fane LLP. For more information, visit spencerfane.com.