The EPA, Department of Army, and Army Corps of Engineers (the agencies) have proposed to rescind their 2015 regulatory definition of “waters of the United States” and re-codify the prior definition of this term. This definition is known as the Waters of the U.S., or “WOTUS,” rule, and it determines what bodies of waters are subject to federal protection under the Clean Water Act.
Three months ago, the President issued an Executive Order directing the agencies to review the WOTUS rule for consistency with the new administration’s policies. Under the Obama Administration, the agencies had revised the WOTUS definition to cover small waterways; however, the U.S. Court of Appeals for the Sixth Circuit issued a stay of that rule shortly after it was published. As a result, the agencies’ most recent action will not have an immediate effect, since it re-codifies the definition that is still currently in effect as a result of the stay.
Moreover, the re-codification of the pre-2015 definition is likely to be temporary. The proposed rule explains that this current action is only the first part of a two-step process of reviewing and revising the definition of waters of the United States. The second step will be a more comprehensive rulemaking to consider a new definition. As directed by the Executive Order, this future rulemaking will take into consideration the principles outlined by Justice Scalia writing for a plurality of the Supreme Court in Rapanos v. United States. The Rapanos opinion offers a more restrictive definition of waters of the United States, which would cover “relatively permanent, standing or continuously flowing bodies of water” connected to traditional navigable waters, as well as wetlands with “continuous surface connection” to such waters.
Comments on the re-codification of the pre-2015 definition will be due 30 days after publication in the Federal Register. However, the agencies state that these comments should be limited to only the question of whether the agencies should adopt the pre-2015 definition as an interim measure before conducting a more substantive rulemaking on a new definition. Comments about the proper definition of waters of the United States should wait until the second rulemaking proceeding.