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Waters of the United States (WOTUS) Rulemaking

Rulemaking Process

On this page:
Learn More about the "waters of the United States" Rulemakings:

Open Public Comment Periods

Step One - Repeal

The Environmental Protection Agency and the Department of Army (the agencies) are seeking additional comment on the proposed Repeal of the 2015 Rule through a supplemental notice of proposed rulemaking.  Commenters need not resubmit comments already provided in response to the July 27, 2017 notice. The public comment period will close on August 13, 2018.  

Step Two - Revise

There are currently no open public comment periods. 

Applicability Date to the 2015 Rule

There are currently no open public comment periods. The final rule was signed on January 31, 2018, and was published in the Federal Register on February 6, 2018.  

Two-Step Process

The agencies are implementing Executive Order 13778, Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule,  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."

  1. Step One - Repeal - The agencies are proposing to establish the legal status quo in the Code of Federal Regulations, by repealing the 2015 Rule and recodifying the regulation that was in place prior to issuance of the 2015 Rule and that is being implemented now.
  2. Step Two - Revise - The agencies plan to propose a new definition that would replace the approach in the 2015 Rule and the pre-2015 regulations, 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. 

Both proposed steps of this rulemaking process will follow the Administrative Procedure Act

Executive Order

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).

Federal Register Notice of Intention to Review and Rescind or Revise the Clean Water Rule

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.