On Wednesday, July 26, 2017, the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (ACOE, and collectively with EPA, the Agencies) published a proposed rule to rescind the current version of the rule, which defines the scope of ‘‘waters of the United States’’ subject to regulation under the Clean Water Act (CWA). The “waters of the United States” rule, developed by the Obama administration, has been the subject of much controversy and litigation as it expanded the scope of water bodies subject to possible federal regulation – and therefore possible federal permitting and enforcement – and created additional regulatory burdens and uncertainty, according to its critics. The July 26 publication also marks the beginning of the public comment period, which will close on August 28, 2017.  

In 2015, the Agencies published the ‘‘Clean Water Rule: Definition of ‘Waters of the United States’’’ (80 FR 37054, June 29, 2015) (2015 Rule). The 2015 Rule expanded the number and types of water bodies that would qualify as “waters of the United States,” potentially impacting holders of permits, as well as those seeking permits, to discharge into or otherwise utilize water resources. On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit stayed application of the 2015 Rule nationwide. The stay remains in effect.

The Agencies’ July 26, 2017 proposal would replace the stayed 2015 definition of ‘‘waters of the United States,’’ with the exact regulatory text that existed prior to the 2015 Rule. The replacement continues the current regulatory scheme under which the Agencies are operating pursuant to the Sixth Circuit’s October 9, 2015 order. The proposed regulatory text would replace the stayed rulemaking text, and re-codify the regulatory definitions at 33 CFR part 328 and 40 CFR parts 110; 112; 116; 117; 122; 230; 232; 300; 302; and 401 in the Code of Federal Regulations (CFR) as they existed prior to the promulgation of the stayed 2015 Rule. The Agencies explained that “[i]f this proposed rule is finalized, the Agencies would continue to implement those prior regulatory definitions, informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding agency practice.”

Permit holders, potential permittees and anyone potentially subject to CWA enforcement should consider submitting comments to the Agencies by August 28, 2017 in support of the proposed rule to ensure the Agencies are informed of all potential impacts of not rescinding the 2015 Rule. Those subject to CWA enforcement would be wise to seek the assistance of experienced legal counsel to draft  and submit comments in response to proposed agency actions, as well as in matters related to CWA permitting and enforcement.