Frequently Asked Questions
- What does the February Executive Order on “waters of the United States” say?
- How are the agencies (EPA and Department of Army) responding to the Executive Order?
- Why do people care about how “waters of the United States” is defined?
- Why is there confusion about what “waters of the United States” means?
- How does the Executive Order change how the agencies determine jurisdictional waters today?
- Where are the agencies in the rulemaking process?
- What effect would the Step 1 proposal have on the Clean Water Rule of 2015?
- Where can I find the Clean Water Rule web page?
A-1: This action follows the February 28, 2017, Presidential Executive Order on “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” The Order states that it is in the national interest to 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. It also directs the Environmental Protection Agency (EPA) and the Department of the Army to review the existing Clean Water Rule for consistency with these priorities and publish for notice and comment a proposed rule rescinding or revising the rule, as appropriate and consistent with the law. Further, the Order directs the agencies to consider interpreting the term "navigable waters," as defined in 33 U.S.C. 1362(7), in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006).
A-2: To meet the objective described in the February 28, 2017, Executive Order, the agencies intend to follow an expeditious, two-step process that will provide certainty across the country:
- The agencies are taking action to establish the legal status quo in the Code of Federal Regulations, by proposing to recodify the regulation that was in place prior to issuance of the Clean Water Rule which is being implemented now under the U.S. Court of Appeals for the Sixth Circuit’s stay of that rule.
- The agencies plan to propose a new definition interpreting the jurisdictional bounds of the Clean Water Act that would replace the broader approach of the 2015 Rule, taking into consideration the principles that Justice Scalia outlined in the Rapanos plurality opinion. Justice Scalia’s opinion indicates Clean Water Act jurisdiction includes relatively permanent waters and wetlands with a continuous surface connection to relatively permanent waters.
A-3: The jurisdictional scope of the 1972 Clean Water Act is the “navigable waters,” defined as all “waters of the United States” (Section 502). This is important because all Clean Water Act programs—including tribal and state certification programs, pollution permits, and oil spill prevention and planning programs—apply only to “Waters of the United States.” The Clean Water Act provides the discretion for the implementing agencies—EPA and the Army Corps of Engineers—to define this term in regulations, and this has been further interpreted by the courts.
A-4: From the 1970s through the 1990s, the majority of federal courts as well as the agencies consistently interpreted a broad scope of Clean Water Act jurisdiction as necessary to and consistent with the Act’s goals of protecting water quality. Supreme Court decisions in 2001 and 2006 held that the scope of navigable waters must be interpreted more narrowly. The justices in the 2006 Rapanos decision were split on how this was to be accomplished. The agencies have been working since the Supreme Court decisions to provide clarification and predictability in the procedures used to identify waters that are – and are not – covered by the Clean Water Act. The 2015 Clean Water Rule, and the new rulemaking effort, reflect the agencies’ efforts to provide that needed clarification and predictability.
A-5: The E.O. and Federal Register notice (82 FR 12532, March 6, 2017) have not altered the definition of “Waters of the United States” or how the agencies implement CWA programs. For now, the agencies continue to operate as they have under the stay issued by the Court of Appeals for the Sixth Circuit in October 2015. That means they are using the prior regulatory definition of “Waters of the United States,” as clarified by Supreme Court decisions, agency guidance, and longstanding practice.
A-6: Actions are currently underway in both steps of the process.
- Step 1 is intended to recodify in the Code of Federal Regulations the definition currently in effect under the Sixth Circuit stay. The proposed rule published in the Federal Register (FR) on July 27, 2017, and was open for public comment through September 27, 2017. The public comment period closed on September 27, 2017. Comments are being posted to the docket.
- Step 2 rulemaking involves a substantive re-evaluation and revision of the definition of “Waters of the United States” in accordance with the February Executive Order. On April 19, 2017, EPA initiated a formal process known as Federalism consultation, which requires agencies to conduct pre-proposal discussions with elected state and local officials and their associations where a rule may have implications for the distribution of power and responsibilities among federal, state, and local governments. On April 20, 2017, EPA, with the participation of Department of Army and the Army Corps of Engineers, initiated the consultation process with tribal leaders. Like the Federalism consultation, this process assures that the agencies consider tribal concerns and interests whenever EPA’s actions and/or decisions may affect tribes, and it enables the agencies to coordinate with tribes and get their input before proposing a rule. The written comment periods for these consultation periods have now closed. The agencies will consider all comments received under these formal processes before submitting a proposed step two rule to the Office of Management and Budget under Executive Order 12866. The public will have an opportunity to provide comments once the step two proposed rule is published in the Federal Register. The agencies also hosted public listening sessions in Fall 2017 to hear stakeholder recommendations for revising the definition of "waters of the United States." They have also established a non-regulatory docket for the public to submit written recommendations. The docket, Docket ID No. EPA-HQ-OW-2017-0480, closed on November 28, 2017. Written recommendations are being posted here on the docket.
A-7: In this first step of a comprehensive, two-step process intended to revise the definition of “waters of the United States," the agencies are proposing to re-codify the regulatory definition that existed prior to the 2015 rule. Under the proposal, the 2015 rule, which has been stayed by a federal court, would be replaced. The exact same regulatory text that existed prior to the 2015 rule, which reflects the current legal regime under which the agencies are operating, would be re-codified in the Code of Federal Regulations.
A-8: EPA has archived the Clean Water Rule website in the EPA Web Archive. In addition, EPA has made public a “snapshot” of the EPA website as it existed on January 19, 2017. The Clean Water Rule website can be found in the Snapshot during and after the archiving process. EPA continues to provide several documents and links related to the rulemaking for the Clean Water Rule on the Section 404 of the Clean Water Act website.