This week, the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (Army Corps) issued the first of its two-step proposal to revisit the controversial Waters of the United States (WOTUS) Rule finalized during the Obama Administration. The agencies describe the first step as an interim rule to restore the regulations as they existed prior to the WOTUS Rule. In the second step, to be undertaken at a later date, the agencies will substantively revise the regulations defining “waters of the United States,” as required by an Executive Order released in early March.1
The proposed rule released this week would restore the definition of “waters of the United States” to its definition prior to the effectiveness of the WOTUS Rule. The agencies explain that the proposal provides regulatory certainty for several reasons: the United States Court of Appeals for the Sixth Circuit has stayed the WOTUS Rule, so regulated entities are following the pre-WOTUS Rule version of the regulations anyway; if the stay expires due to related litigation before the Supreme Court, the rule would be in effect in some areas but not all; and the pre-WOTUS Rule version of the regulations has been in place for decades.
If finalized, the rule would rescind the WOTUS Rule and recodify the prior version of the regulations. By proposing to recodify, EPA likely will reopen the decades-old regulations to comment from the public. This route may complicate EPA’s ability to retain the pre-WOTUS Rule status wherein state or federal agencies determine on a case-by-case basis which waters are subject to federal pollution control requirements.
The WOTUS Rule was intended to address the uncertainty of case-by-case determinations, but was challenged throughout the country for allegedly increasing uncertainty. The proposed rule is the Trump EPA’s first attempt to address this highly contentious issue, but it too will likely face significant challenges.
A revised WOTUS Rule under the second step of the agencies’ process may portend more certainty for the regulated community in the long term. Unresolved jurisdictional questions in the courts may impact EPA’s regulatory process if the stay of the WOTUS Rule is lifted. A comment period that involves issues percolating for decades under the older regulations would also complicate EPA’s ability to withstand judicial scrutiny. Accordingly, determinations of whether waters require federal pollution control permits will depend on future action by the courts and the Administration.