- Final Rule: Definition of “Waters of the United States” – Addition of an Applicability Date to 2015 Clean Water Rule
- Step One Proposed Rule
- Step Two Outreach
- Two-Step Process
- Public Comment Periods
- Executive Order
- Federal Register Notice of Intention to Review and Rescind or Revise the Clean Water Rule
Final Rule: Definition of “Waters of the United States” – Addition of an Applicability Date to 2015 Clean Water Rule
The Environmental Protection Agency and U.S. Department of the Army (the agencies) finalized a rule adding an applicability date to the 2015 Rule defining “waters of the United States.” The 2015 Rule will not be applicable until February 6, 2020.
Given uncertainty about litigation in multiple district courts over the 2015 Rule, this action provides certainty and consistency to the regulated community and the public, and minimizes confusion as the agencies reconsider the definition of the “waters of the United States” that should be covered under the Clean Water Act. Implementation of the 2015 Rule is currently on hold as a result of the Sixth Circuit’s nationwide stay of the rule. That stay will be affected by the Supreme Court decision in National Association of Manufacturers v. Department of Defense et al., which held that the courts of appeals do not have original jurisdiction to review challenges to the 2015 Rule. The 2015 Rule is enjoined in 13 states due to a North Dakota district court ruling.
The agencies’ new rule is separate from the two-step process the agencies propose to take to reconsider the 2015 Rule.
The proposed rule published in the Federal Register on November 22, 2017. The public comment closed on December 13, 2017. Comments can be found in the docket. The final rule was signed on January 31, 2018, and was published in the Federal Register on February 6, 2018.
- Read the Final Rule
- Read the Memorandum: Consideration of Potential Economic Impacts for the Final Rule
- Access All Materials in the Docket
- Read the Proposed Rule
Step One Proposed Rule: Definition of "Waters of the United States" - Recodification of Pre-existing Rules
The Environmental Protection Agency and Department of Army (the agencies) are proposing a rule to rescind the 2015 Rule and re-codify the regulatory text that existed prior to 2015 defining "waters of the United States" or WOTUS. On June 27, 2017, EPA Administrator Scott Pruitt, along with Mr. Douglas Lamont, senior official performing the duties of the Assistant Secretary of the Army for Civil Works, signed the proposed rule.
This action would, when finalized, provide certainty in the interim, pending a second rulemaking in which the agencies will engage in a substantive re-evaluation of the definition of "waters of the United States." The proposed rule would be implemented in accordance with Supreme Court decisions, agency guidance, and longstanding practice. Proposing to re-codify the regulations that existed before the 2015 Rule will provide continuity for regulated entities, the States, and the public.
- Read the Proposed Rule
- Read the Economic Analysis for the Proposed Rule
- Access all materials in the Docket
The public comment period closed on September 27, 2017. Comments are being posted to the docket.
Public Meetings - The Environmental Protection Agency (EPA) and the U.S. Department of the Army held public meetings in Fall 2017 to hear from stakeholders their recommendations to revise the definition of “Waters of the United States” under the Clean Water Act (CWA). More information about these meetings, including a complete schedule and the Federal Register notice, can be found at EPA's Outreach Meetings webpage.
Written Recommendations - The agencies established an administrative docket, Docket ID No. EPA-HQ-OW-2017-0480, to solicit recommendations for the Step 2 rulemaking to define "waters of the United States." The docket closed on November 28, 2017. Written recommendations can be found here in the docket.
Consultation Letters - This spring EPA, in coordination with the Department of the Army, initiated formal consultations to solicit comments from state and local governments and from tribes regarding such a new definition. The agencies held a series of meetings with various groups as part of the consultation processes and are now posting for public review each of the letters received as part of the consultation processes.
- Federalism letters are available at https://www.epa.gov/wotus-rule/federalism-consultation
- Tribal letters are available at https://www.epa.gov/wotus-rule/tribal-consultation
Federalism - Consistent with E.O. 13132, Federalism, the EPA, Department of Army, and the Army Corps of Engineers are consulting with state and local government officials, or their representative national organization, while developing a revised definition of "waters of the United States." The agencies are consulting due to strong interest on the part of state and local governments on this issue over the years and potential effects associated with a change in the definition of “waters of the United States”
Tribal Consultation - Consistent with the EPA Policy on Consultation and Coordination with Indian Tribes, the EPA is consulting with Federally recognized Indian tribes while developing a revised definition of "waters of the United States." Department of Army and the Army Corps of Engineers have been invited to participate in the consultation and coordination.
The EPA and Department of Army (the agencies) are implementing the Executive Order in two steps to provide certainty to the regulated community and the public while the agencies develop a revised definition of "waters of the United States."
- The agencies are proposing to establish the legal status quo in the Code of Federal Regulations, by recodifying the regulation that was in place prior to issuance of the 2015 Rule and that is being implemented now under the later applicability date of that rule.
The agencies plan to propose a new definition that would replace the approach in the 2015 Rule, taking into consideration the principles that Justice Scalia outlined in the Rapanos plurality opinion.
Until a new definition of “waters of the United States” is in place, the agencies will continue to implement the regulatory definition in place prior to the 2015 Rule, consistent with Supreme Court decisions, agency guidance, and longstanding practice.
The agencies accepted comment on the proposed rule "Definition of 'Waters of the United States' - Addition of Applicability Date to 2015 Rule" through December 13, 2017. Comments can be found in the docket.
- Both proposed steps of this rulemaking process will follow the Administrative Procedure Act.
On February 28, 2017, the President signed the “Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” Exit The E.O. calls on the EPA Administrator and the Assistant Secretary of the Army for Civil Works to review the final 2015 Rule and “publish for notice and comment a proposed rule rescinding or revising the rule….” The E.O. directs that the EPA and the Department of Army “shall consider interpreting the term ‘navigable waters’” in a manner “consistent with Justice Scalia’s opinion” in Rapanos v. United States (2006).
In accordance with a Presidential directive, on March 6, 2017, the U.S. Environmental Protection Agency and the Department of the Army announced their intention to review and rescind or revise the 2015 Clean Water Rule.