The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (“agencies”) issued a supplemental notice of proposed rulemaking to seek additional comments on the repeal of the 2015 “waters of the United States” rule under the Clean Water Act (“2015 WOTUS Rule”).
In July 2017, the agencies first issued a notice of a proposed rulemaking to repeal the 2015 WOTUS Rule. On February 6, 2018, the agencies published a final rule in the Federal Register adding an applicability date of February 6, 2020 to the 2015 WOTUS Rule, but at that time the agencies did not repeal the 2015 WOTUS Rule. The applicability date of February 6, 2020, makes it such that the pre-2015 regulatory definition of waters of the United States will be in effect until February 6, 2020 or until the 2015 WOTUS Rule is repealed. For additional background, see Schroeder Law Offices blog post, available here.
The agencies issued the supplemental notice to provide the public an opportunity to comment on additional agency considerations to support the repeal of the 2015 WOTUS Rule that were not discussed in the July 2017 notice of proposed rulemaking. The supplemental notice also aims to clarify that the agencies’ July 2017 proposal would completely and permanently repeal the 2015 WOTUS Rule in its entirety, replacing it with the pre-2015 regulatory definition.[1]
The supplemental notice also provides an additional comment period for interested parties to consider new factors and reasoning the agencies recently published as further support for the agencies’ decision to consider repealing the 2015 WOTUS Rule.[2] The additional information and comment period provided by the supplemental notice may also be designed to strengthen the July 2017 rulemaking process as any final rule will inevitably be challenged in a lawsuit.[3]
While the pre-2015 waters of the United States regulatory definition is in effect, the agencies will draft a new regulatory framework to define “waters of the United States.” The agencies will then publish a proposed rulemaking in the Federal Register to adopt a new definition.[4]
The public has 30 days to comment on the supplemental notice of proposed rulemaking. The comment period closes August 13, 2018.
[1] EPA New Release, EPA and Army Seek Additional Public Comment on ‘Waters of the U.S.’ Repeal (June 29, 2018) https://www.epa.gov/newsreleases/epa-and-army-seek-additional-public-comment-waters-us-repeal.
[2] Environmental Protection Agency, Definition of Waters of the United States-Recodification of Preexisting Rule, 83 Fed. Reg. 32,227 (July 12, 2018) https://www.regulations.gov/document?D=EPA-HQ-OW-2017-0203-15104.
[3] Juan Carlos Rodriguez, EPA, Corps Expand Legal Case Against Obama Water Rule, Law360 (June 29, 2018) available at https://www.law360.com/articles/1059064/epa-corps-expand-legal-case-against-obama-water-rule.
[4] EPA, Waters of the United States (WOTUS) Rulemaking, https://www.epa.gov/wotus-rule/step-two-revise.
