Today, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (the agencies) announced the pre-publication version of a proposed rule to rescind the Obama-era 2015 鈥淲aters of the United States鈥 (WOTUS) rule that defines what streams, wetlands and other wet areas are controlled by the federal government and subject to all the permitting and other requirements of the Clean Water Act. This action is the first step in a comprehensive, two-step process intended to review and revise the definition of WOTUS consistent with President Trump鈥檚 Executive Order on 鈥淩estoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 鈥榃aters of the United States鈥 Rule.鈥
This first step (when finalized) would re-codify the regulatory text that existed prior to 2015 WOTUS rule. That is currently the controlling law, as a result of the U.S. Court of Appeals for the Sixth Circuit's stay of the 2015 rule. Therefore, this action (today鈥檚 proposal and a final rule) does not change current practice with respect to what WOTUS definition applies: The agencies will continue to use the (status quo as it existed before the 2015 rule) in making jurisdictional determinations or taking other actions based on the definition of WOTUS.
In a separate rulemaking (step two), the agencies plan to engage in a substantive re-evaluation of the definition of WOTUS. 鈥淚n a second step, the agencies will pursue notice-and-comment rulemaking in which the agencies will conduct a substantive re-evaluation of the definition of 'waters of the United States,'鈥 the pre-publication notice states. The step one interim rule would be implemented in accordance with Supreme Court decisions, agency guidance, and longstanding practice, according to the agencies.
To access all of the agency documents referenced above, . For a closer look at AGC鈥檚 active advocacy work and frequent coverage of this issue, click here.