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As previously
reported, President Trump has issued an Executive Order calling
on EPA and the U.S. Army Corps of Engineers (Corps) to formally
review the "Clean Water Rule" also known as the Water of
the United States (WOTUS) Rulemaking. On April 19, EPA laid outs
its plans for revising the Clean Water Rule consistent with the
Executive Order in a meeting with state and local officials.
EPA envisions a two step process through which it will (i)
recodify the regulation in place prior to the issuance of the Clean
Water Rule, which is currently the effective regulation due to the
nationwide stay of the Rule issued by the U.S. Court of Appeals for
the Sixth Circuit, and (ii) ultimately issue a revised rulemaking.
Citing uncertainty over the length of the Sixth Circuit stay, EPA
believes reinstating the preexisting regulation will increase
certainty as to which regulation is in effect pending the issuance
of a new rule. As encouraged by the Executive Order, EPA intends
for the new definition to reflect the principles that Justice
Scalia outlined in the Rapanos v. U.S., 547 U.S. 715
(2006) plurality opinion.
In Rapanos, Justice Scalia interpreted "navigable
waters" to mean waters that are "relatively permanent,
standing or continuously flowing bodies of water 'forming
geographic features' that are described in ordinary parlance as
'streams[,] ... oceans, rivers, [and]
lakes.'" Rapanos v. U.S., 547 U.S. 715, 719
(2006) (citing Webster's Dictionary). EPA intends to
consult with state and local government officials in developing a
new definition.
EPA laid out three potential approaches to determining what
constitutes "relatively permanent" waters. First, EPA
will consider including: perennial streams plus streams with
"seasonal" flow (typically three months of flow);
perennial streams plus streams with another measure of flow such as
frequency of flow or intersecting water tables; or include only
perennial streams (streams that carry flow throughout the year
except in extreme drought). In determining how to regulate
"continuous surface connections," EPA will also consider
three options, including regulating: only surface connections even
through non-jurisdictional features; connections where there is
some degree of connectivity based on metrics such a distance; or
only wetlands that directly touch a jurisdictional water.
EPA has asked for feedback on these concepts, as well as other
suggestions, from the state and local officials by mid-June. EPA
did not indicate when it plans to publish the recodified regulation
in the Federal Register. EPA's powerpoint presentation
outlining its plans is available
here.
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