EPA Proposes Recodification of Pre-Existing WOTUS Definition

July 12, 2018

The process of undoing the Obama Administration’s Waters of the U.S. (WOTUS) rule took another step this week with EPA and the Army Corps of Engineers releasing a pre-publication Supplemental Notice of Proposed Rulemaking (SNPR).

The WOTUS rule, when promulgated in 2015, was immediately met with controversy and court challenges. Critics said that ambiguity in the WOTUS rule opened the door for Federal overreach.

EPA and the Corps issued a notice of proposed rulemaking in a July 2017 proposed action to repeal the 2015 definition of “waters of the United States.” The SNPR clarifies that the agencies are proposing to permanently repeal the 2015 WOTUS rule in its entirety. The SNPR also reiterates that the agencies are proposing to recodify the pre-2015 regulations – the longstanding regulatory framework that is currently being administered by the agencies.  -- to keep them in place and implemented consistent with Supreme Court precedent while the agencies finalize a new WOTUS definition.

The SNPR is responsive to President Trump’s February 2017 Executive Order that directed EPA and the Corps to review the rule for consistency with the policy to “ensure the Nation’s navigable waters are kept from pollution while at the same time promoting economic growth [and] minimizing regulatory uncertainty.”

The agencies subsequently determined that a revision was appropriate, beginning a two-step rulemaking process to revise the scope of the WOTUS rule. The July 2017 proposed rule and SNPR are the first step.

In the second step, the agencies will propose a new definition and scope of what constitutes WOTUS.

Comments on the SNPR are due 30 days following publication in the Federal Register.