EPA and U.S. Army Corps of Engineers Propose Rescission of WOTUS Rule

On June 27, EPA administrator Scott Pruitt along with the assistant secretary of the Army for civil works signed a proposed rule to rescind the Obama administration “waters of the United States” or “WOTUS” rule.  The proposed rule to rescind is consistent with President Trump’s Executive Order signed on February 28, 2017, “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”  It offers a two-step process–first to rescind the 2015 rule, and secondly to then pursue notice and comment rulemaking under which EPA and the U.S. Army Corps of Engineers would conduct a substantial reevaluation of the WOTUS definition.

The agencies propose to replace the 2015 definition of “waters of the United States”, and recodify the exact same regulatory text that existed prior to the 2015 rule, which reflects the current legal regime under which the agencies are operating pursuant to the Sixth Circuit’s October 9, 2015 order staying the 2015 Rule.  The proposed regulatory text would thus replace the stayed rulemaking text, and recodify the regulatory definitions  in the Code of Federal Regulations as they existed prior to the promulgation of the stayed 2015 definition.

Though much work remains, the current regulatory direction has to offer some relief to those subject to the wide reach of the WOTUS rule.