On July 27, 2017, the Environmental Protection Agency (EPA) and the Army Corps of Engineers (ACE) proposed a new rule that would be the first step in a two‑step process intended to review and revise the definition of "waters of the United States" (WOTUS), consistent with the Executive Order signed by the President on February28, 2017, "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule." Proposed Rule:Definition of "Waters of the United States"‒Recodification of Pre‑Existing Rules, 82 Fed. Reg. (July27,2017) (Proposed Recodification). For discussion on the Executive Order, see KEAG Bulletin No.2017‑08 (March2, 2017). This first step proposes a rule that would rescind the Obama Administration's 2015 WOTUS rule (2015 WOTUS Rule or 2015 Rule) (discussed in KEAG Bulletin No.2015‑39 (May27, 2015)) and recodifying the definition of WOTUS back to the language it was prior to the 2015 Rule. Proposed Recodification at 1‑2.
Katten reported in KEAG Bulletin No.2015‑73 (October9, 2015), the Sixth Circuit temporarily stayed the 2015 WOTUS rule nationwide on October9, 2015, pending the court's resolution of jurisdictional issues. The Sixth Circuit also ruled that appellate courts, not district courts, have sole jurisdiction to consider challenges of Clean Water Act (CWA) rules. See KEAG Bulletin No.2016‑05 (February 23, 2016). The U.S. Supreme Court has set oral argument for October11, 2017, on this issue concerning whether federal district courts or federal appeals courts should hear such CWA challenges. In re:U.S. Dep't of Defense & U.S. Envtl. Protection Agency Final Rule:Clean Water Rule, 817F.3d 261 (6thCir. 2016), cert. granted, National Association of Manufacturers v. Department of Defense, 85 U.S.L.W. 3344 (U.S. Jan.13, 2017).
Thus, with adoption of this proposal, the Agencies would continue to apply the definition of WOTUS as it is currently being implemented. EPA believes that recodifying the regulations that existed before the 2015 WOTUS rule will provide continuity and certainty for regulated entities, the States, agency staff, and the public. Proposed Recodification at 2.
The proposal describes the second step of this regulatory initiative as an effort by the Agencies to pursue a separate notice-and-comment rulemaking, in which the Agencies will conduct a substantive reevaluation of the definition of WOTUS. Id. The proposed rule is attached.