On July 27, 2017, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers published their proposed rule to rescind the Clean Water Rule. This is the same rule that was released in pre-publication form in June, which we described in a previous entry.

The rule is the first step in the two-step process the agencies announced in implementing the Presidential Executive Order on “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule” that was issued on February 28, 2017. The second step involves proposing a new definition of waters of the United States based on Justice Scalia’s plurality decision outlined in Rapanos v. United States, 547 U.S. 715 (2006).

The agencies seek comment on whether, as an interim step, to restore the pre-Clean Water Rule definitions and regulations. The comment period ends on August 28, 2017. Comments on the definition of waters of the United States will be sought in a second, subsequent rulemaking.