Regulatory Developments

EPA and Corps Propose to Rescind WOTUS Definition

The EPA and the U.S. Army Corps of Engineers (agencies) have formally proposed to rescind the definition of “waters of the United States” as implemented by the 2015 Clean Water Rule and to recodify the prior definition that has been in use since October 9, 2015.

The proposed rule was published in the July 27, 2017, Federal Register (FR), and it is the first step in a previously announced two-step process that will review and revise the definition of “waters of the United States” in keeping with President Trump’s Executive Order signed February 28, 2017. The recodification of the pre-2015 definition is intended as an interim measure to formally implement the current legal status quo while the agencies engage in a second, substantive rulemaking to reconsider the definition.

Specifically, the definition of “waters of the United States” will be revised in the Code of Federal Regulations to mean:

  • All waters that are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters that are subject to the ebb and flow of the tide;
  • All interstate waters, including interstate wetlands;
  • All other waters, such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sand flats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation, or destruction of which could affect interstate or foreign commerce, including any waters:
    • That are or could be used by interstate or foreign travelers for recreational or other purposes;
    • From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
    • That are or could be used for industrial purposes by industries in interstate commerce;
  • All impoundments of waters otherwise defined as waters of the United States under the definition;
  • Tributaries of the above listed waters;
  • The territorial seas; and
  • Wetlands adjacent to the above listed waters.

Prior converted cropland and waste treatment systems will not be considered waters of the United States. The proposed definition will be implemented by the agencies consistent with guidance documents issued prior to 2015, applicable case law, and longstanding agency practice.

The agencies are accepting written public comments on this interim rulemaking until August 28, 2017. Comments must be submitted through www.regulations.gov using Docket ID No. EPA-HQ-OW-2017-0203. Comments on the substantive revision of the definition will not be considered.

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