Federal agencies publish proposed rule rescinding the 2015 Clean Water Rule

As noted in the previous issue of the Forestry Environmental Program News, the Environmental Protection Agency and the Department of the Army have issued a proposed rule to initiate the first step in a two-step process intended to rescind and revise the definition of “waters of the United States” consistent with a Presidential Executive Order signed on February 28, 2017. The proposed rule appeared in the July 27 issue of the Federal Register (82 FR 34900 – 34909).

In this first step, the agencies are proposing to rescind the definition of “waters of the United States” in the Code of Federal Regulations and re-codify the definition that currently governs administration of the Clean Water Act. The definition in the Code of Regulations was promulgated by the agencies in the 2015 “Clean Water Rule” (80 FR 37054 – 37127) which was stayed by the U.S. Court of Appeals for the Sixth Circuit in October 2015.

Since the Clean Water Rule was stayed, the definition of “waters of the United States” that existed prior to promulgation of the Clean Water Rule has been in effect nationwide. Thus, the agencies are proposing to administer the regulations as they are currently being implemented.

In a second step, the agencies indicate in the proposed rule that they will pursue notice-and-comment rulemaking during which they will conduct a substantive reevaluation of the definition of “waters of the United States.” 

The agencies recently announced a 30-day extension of the public comment period for the proposed rule.  The comment period, as now extended, will close on September 27, 2017.