Frequently Asked Questions
- What does the February Executive Order regarding “waters of the United States” say?
- How are EPA and Department of Army (the agencies) responding to the Executive Order?
- Why do people care about how “waters of the United States” is defined?
- How does the Executive Order inform how the agencies determine jurisdictional waters today?
- What is the status of the rulemaking process?
- What effect would the Step One Repeal proposal have on the 2015 Rule?
- What is the Step One Repeal Supplemental Notice?
- What effect would the Step Two proposed revised definition of "waters of the United States" have?
A-1: The February 28, 2017 Presidential Executive Order entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule” 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 2015 Rule defining “waters of the United States” for consistency with these priorities and publish for notice and comment a proposed rule rescinding or revising the 2015 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 are following a two-step process that will provide certainty across the country:
- The agencies have proposed to repeal the 2015 Rule and revert to the regulatory regime that was in place prior to issuance of the 2015 Rule.
- The agencies have also proposed a new definition interpreting the jurisdictional scope of the Clean Water Act that would differ from the broader approach of the 2015 Rule, taking into consideration the principles that Justice Scalia outlined in the Rapanos plurality opinion.
A-3: The jurisdictional scope of the 1972 Clean Water Act is the “navigable waters,” defined as the “waters of the United States” (Section 502). This is important because many Clean Water Act programs—including tribal and state water quality certification programs, pollutant discharge 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 “waters of the United States” in regulations.
A-4: The E.O. and the Federal Register notices (82 FR 12532, March 6, 2017; 83 FR 32227, July 12, 2018) proposing to rescind the 2015 Rule have not at this time altered the definition of “waters of the United States” or how the agencies implement Clean Water Act programs. Court decisions have led to the 2015 Rule being in effect in 22 states, the District of Columbia, and the U.S. territories. In 28 states where the 2015 Rule has been preliminarily enjoined, the agencies are using the pre-2015 regulatory definition of “waters of the United States,” as clarified by Supreme Court decisions, agency guidance, and longstanding practice.
A-5: Actions are currently underway in both steps of the process.
Step One is a proposal to repeal the 2015 Rule and revert to the regulatory regime that existed prior to the 2015 Rule. The agencies have received almost 800,000 comments on the Step One proposal and a supplemental notice and are reviewing these comments before finalizing the rule.
- Step Two is a proposal to revise the definition of “waters of the United States.” The agencies signed the proposed Step Two rule on December 11, 2018. This proposal is grounded in significant pre-proposal outreach and consultation with states, tribes and stakeholders. In April 2017, EPA conducted pre-proposal discussions with elected state and local officials and their associations and with tribal leaders. The agencies hosted public listening sessions in Fall 2017 to hear stakeholder recommendations for revising the definition of “waters of the United States.” The agencies also solicited written recommendations, posted on the docket. The pre-proposal input and relevant comments from the Step One process were considered as the agencies developed their new proposed definition for “waters of the United States.” The public now has an opportunity to provide comments on the proposal. These comments will be posted on the docket, identified by Docket No. EPA-HQ-2018-0149.
A-6: The Step One proposal, if finalized, would repeal the 2015 Rule and recodify the regulatory definition that existed prior to the 2015 Rule.
A-7: On June 29, 2018, the agencies signed a supplemental notice of proposed rulemaking to the proposed Step One repeal of the 2015 Rule. The supplemental notice clarified that the agencies are proposing to permanently repeal the 2015 Rule in its entirety. As part of the initial proposal, the EPA and the Army indicated their intent to revert to the pre-2015 regulations—a longstanding regulatory framework that is currently being administered by the agencies in some parts of the country—until the agencies finalize a new definition of “waters of the United States.” The agencies also issued the supplemental notice of proposed rulemaking to give the public an opportunity to comment on additional considerations that support the agencies’ proposed repeal, some of which the agencies did not discuss in detail in the initial proposal. Commenters did not need to resubmit comments already provided in the response to the July 27, 2017 notice of the proposed rulemaking.
Q-8: What effect would the Applicability Date Rule have on the 2015 Rule’s definition of “waters of the United States”?
A-8: This rule added an applicability date to the 2015 Rule defining “waters of the United States,” meaning that the 2015 Rule would not go into effect until February 6, 2020. However, the U.S. District Court for the District of South Carolina nationally enjoined this applicability date rule in August 2018. Pursuant to the court’s order, the 2015 Rule is now in effect in 22 states, the District of Columbia, and the U.S. territories. The 2015 Rule is not in effect in 28 states pursuant to federal court orders in North Dakota, Georgia, and Texas. Parties to the South Carolina case, including the EPA and the Army, have filed motions appealing the order and seeking a stay of the district court’s decision. In addition, on November 26, 2018, the U.S. District Court for the Western District of Washington vacated the Applicability Date Rule nationwide. While the litigation continues, the agencies are complying with the district courts’ orders, and implementation issues that arise are being handled on a case-by-case basis. The agencies recognize the uncertainty these decisions have created and are committed to working closely with states and stakeholders to provide updated information on an ongoing basis regarding which rules are in place in which states.
Q-9: What effect would the Step Two proposed revised definition of "water of the United States" have?
The agencies’ proposal would provide a straightforward definition that would protect the nation’s navigable waters, help sustain economic growth, and reduce barriers to business development. This proposed rule provides clarity, predictability and consistency so that the regulated community can easily understand where the Clean Water Act applies—and where it does not. The agencies’ proposal is consistent with the statutory authority that was given to the agencies by Congress, the legal precedent set by key Supreme Court cases, and the February 2017 Executive Order entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”
The proposed rule outlines what are considered “waters of the United States”: traditional navigable waters; tributaries to those waters; certain ditches; certain lakes and ponds; impoundments of jurisdictional waters; and wetland adjacent to jurisdictional waters. The proposal also clearly establishes what are not “waters of the United States,” among them: waters not meeting one of the preceding jurisdictional categories; ephemeral features, including ephemeral streams; groundwater; many ditches; prior converted cropland; stormwater control systems and wastewater recycling structures; wastewater recycling structures; and waste treatment systems.