EPA, Army propose rescinding controversial Waters of the US rule

The US Environmental Protection Agency, Department of the Army, and Army Corps of Engineers (ACE) jointly proposed rescinding the 2015 Clean Water Rule, and restoring language that existed prior to the law’s controversial Waters of the US (WOTUS) provision.

The June 27 action would provide certainty until the agencies can produce a fresh rule following a substantial reevaluation of what defines “waters of the United States,” EPA said. The proposed rule would be implemented in accordance with Supreme Court decisions, agency guidance, and longstanding practice, it said.

EPA and ACE jointly issued the rule that expanded enforcement under the Clean Water Act in late May 2 years ago. Congressional Republicans and US industries including oil and gas immediately said it went too far in defining bodies of water that would be regulated (OGJ Online, May 28, 2015).

The two agencies began to implement the rule in all but 13 states toward the end of August after federal district court judges in North Dakota and West Virginia issued conflicting orders. “Under the order issued by the District Court of North Dakota, the parties that obtained the preliminary injunction are not subject to the new rule, and instead continue to be subject to the prior regulation,” EPA said at the time (OGJ Online, Aug. 28, 2015).

EPA said the proposed rule follows US President Donald Trump’s Feb. 28 Executive Order on “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” The order said it is in the national interest to ensure that US navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of Congress and the states under the Constitution.

To meet these objectives, the agencies intend to follow an expeditious, two-step process that will provide certainty across the country, EPA said. The proposed rule would recodify the identical regulatory text that was in place prior to the 2015 rule and that is in place currently as a result of the US Sixth Circuit Appeals Court’s stay of that 2015 rule. “Therefore, this action, when final, will not change current practice with respect to how the definition applies,” EPA said.

It said that the agencies also have begun deliberations and outreach on the second-step rulemaking involving a reevaluation and revision of the definition of Waters of the US in accordance with the executive order.

Contact Nick Snow at nicks@pennwell.com.

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