In late August, EPA and the U.S. Army Corps of Engineers announced an extension of the public comment period for a proposal to recodify a pre-existing rule defining the scope of waters of the United States. The recodification is an interim step in a process intending to write a new definition for the term “Waters of the United States” (WOTUS). (EPA Rulemaking Process). The comment period, which was originally scheduled to end on August 28, 2017, is now extended 30 days and will end on September 27. (Federal Register 8/22/17). In a separate, but related matter, EPA has also announced a series of outreach meetings scheduled to begin on September 19, 2017 and continuing through November 21. (Outreach Schedule). These teleconference meetings are intended to allow various specified interest groups (e.g. small businesses, environmental and public advocacy groups, construction, agriculture, the general public) to participate as discreet sectors in separate meetings and offer recommendations about a new definition for Waters of the United States. Anyone interested in offering input to the agencies before they begin the formal rulemaking process should consult this schedule and participate in the appropriate teleconference.
The process that led to these most recent developments involves a long and difficult history of attempts to fashion a workable definition of WOTUS. Not only the agencies but also the United States Supreme Court have struggled with efforts to set out a definition that has reasonable application nationwide. After a majority of members of the United States Supreme Court were unable to agree on a definition for WOTUS in Rapanos v. United States, 547 U.S. 715 (2006) (PDF), the agencies attempted to re-write a definition based on a concurring opinion in that case written by Justice Kennedy. That effort resulted in a rule promulgated in 2015, but the rule was immediately challenged and a stay was imposed by the Sixth United States Circuit Court of Appeals on October 9, 2015. (Stay Order).
The current efforts were prompted by President Trump’s February 28, 2017, Executive Order directing the agencies to withdraw the 2015 rule and consider a re-write based on the opinion in Raponos written by Justice Scalia. (Executive Order). This initiated a two-step process whereby the agencies are seeking first to reaffirm their interpretation of WOTUS in existence prior to the 2015 rule and then to proceed to promulgate a new definition that is guided by the Scalia opinion. The recently extended comment period focuses on to reestablish the pre-2015 definition and related guidance as the interim replacement of the 2015 rule. The series of public meetings represents one of the initial steps in the process of developing a new rule defining WOTUS. The exact schedule for steps thereafter remains to be determined.