In the July 27, 2017 Federal Register, the Environmental Protection Agency (EPA) and the Department of the Army issued their proposed rule to begin the two-step process to review and revise the “waters of the United States” definition finalized in the 2015 “Waters of the United States” rule (WOTUS). This action was precipitated by the Executive Order, “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the `Waters of the United States’ Rule” signed on February 28, 2017. This proposed rule is the first step in the process, which is to rescind the definition of “waters of the United States” EPA and the Army Corps of Engineers finalized in WOTUS. The definition finalized in 2015 will be replaced with the regulations in place prior to WOTUS. The second step, to follow later, will be for EPA and Army Corps of Engineers to begin the notice-and-comment rulemaking process to re-evaluate the definition of “waters of the United States.” Public comments will be accepted through August 28, 2017.
The EPA and Army of Corps of Engineers propose rescinding the 2015 WOTUS rule and re-codifying the definition of “waters of the United States” that was in place prior to the 2015 WOTUS rule. The 2015 WOTUS rule is currently stayed due to litigation pending in the Sixth Circuit Court of Appeals. As such, the agencies have still been using the pre-2015 definition. The Supreme Court of the United States has granted certiorari to review whether the Sixth Circuit has original jurisdiction of the challenges, or whether the initial review should be considered in district courts. EPA and the Army Corps of Engineers intend to follow this proposed rescission of the 2015 WOTUS rule with a rulemaking process to consider a new definition of “waters of the United States.”