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EPA and Army Corps publish the long awaited proposed WOTUS rule

Aug 02, 2017

In the July 27, 2017 Federal Register, the Environmental Protection Agency (EPA) and the Army Corps of Engineers published the long awaited proposed rule for the definition of “waters of the United States” which effectively rescinds the definition promulgated by the agencies in 2015.  The proposed rule states that the “agencies would apply the definition of ‘waters of the United States’ as it is currently being implemented, that is informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding practice.”

What does this mean for the regulated community?  In this first step, the agencies are proposing to recodify the “exact same” definition of “waters of the United States” that existed prior to promulgation of the 2015 definition.  The proposed rule rescinds the 2015 rule, recodifies the previous definition and provides that the definition will be informed by the guidance issued by the agencies in 2003 and 2008 which attempt to explain jurisdiction set forth under SWANCC and Rapanos line of cases.  Prior to promulgation of a new rule, jurisdiction will extend to “traditional navigable waters and their adjacent wetlands, relatively permanent waters and wetlands that abut them and waters with a significant nexus to a traditional navigable water.”  In effect, it appears that the proposed rule is an attempt to limit the extent of the tributary rule and the creation of “daisy-chained” jurisdictional wetlands.

What is next?  In the forthcoming second step of the rulemaking, the agencies will conduct a separate notice and comment rulemaking to develop a new definition of “waters of the United States” that is consistent with Justice Scalia’s test outlined in Rapanos.  This could mean that jurisdictional waters would be limited by rule to relatively permanent, standing or continuously flowing bodies of water and wetlands only if there is a continuous surface water connection between it and a relatively permanent waterbody.

The immediate effect of the rule is that it appears that jurisdiction will be taken over waters in much the same fashion as has been the agencies’ practice in the recent past until such time as a final new, more limited, definition is promulgated.

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