August 15, 2017
Relief from the 2015 Clean Water Rule: Definition of ‘Waters of the United States,’ also known as WOTUS, is making its way through the rulemaking process. Promulgated in 2015, the onerous rule was quickly stayed from implementation by the courts.
In February, President Trump issued an executive order that outlined a two-step process that would “ensure that the nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of Congress and the States under the Constitution.”
In late June, three agencies — the Environmental Protection Agency (EPA), Department of the Army, and Army Corps of Engineers (Corps) — kicked off the first step with a proposed rule that essentially turns the clock back to before the 2015 rulemaking, recodifying the identical regulatory text in place before that rulemaking. In fact, it’s the same text that has been used for regulatory purposes since the U.S. Court of Appeals for the Sixth Circuit stayed the 2015 rule.
Interestingly, an economic analysis performed by the EPA and Corps as part of the proposed rule refutes its own earlier analysis that the benefits of implementing the rule out-weighed the costs. The agencies attribute the change to the use of faulty information.
“We are taking significant action to return power to the states and provide certainty to our nation’s farmers and businesses,” EPA Administrator Scott Pruitt said in a press release announcing the proposed rule. “This is the first step in the two-step process to redefine ‘waters of the U.S.’ and we are committed to moving through this re-evaluation to quickly provide regulatory certainty, in a way that is thoughtful, transparent, and collaborative with other agencies and the public.”
The new rule is good news for operators, particularly those with sites that include dry creekbeds or isolated wetlands, which would have been harmed by the overly broad 2015 rule. But, the work on WOTUS is not yet complete.
The second step of the process involves a re-evaluation and revision of the definition of “waters of the United States” as outlined in the executive order. This time, all three agencies will be deeply involved in the development of that definition. “The Army, together with the Corps of Engineers, is committed to working closely with and supporting the EPA on these rulemakings,” said Douglas Lamont, a senior official who is performing the duties of the Assistant Secretary of the Army for Civil Works. “As we go through the rulemaking process, we will continue to make the implementation of the Clean Water Act Section 404 regulatory program as transparent as possible for the regulated public.”
For those affected by the deeply muddled waters of the U.S., transparency would be a welcome change.