On July 27, 2017, US EPA and the US Army Corps of Engineers published a Proposed Rule regarding the “Definition of ‘Waters of the United States; – Recodification of Pre-Existing Rules.” The Proposed Rule is a “first step in a comprehensive two-step process intended to review and revise” the definition of “waters of the United States” so as to be consistent with the Executive Order issued by President Trump on February 28, 2017. This “first step” proposes to rescind the definition of “waters of the United States” and to re-codify the definition of “waters of the United States” currently effective under the Clean Water Act pursuant to the Sixth Circuit’s stay of the definition of “waters of the United States” promulgated in 2015.

The Executive Order issued on February 28, 2017 by President Trump titled “Presidential Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States Rule’” requires that US EPA and the Assistant Secretary of the Army for Civil Works review the final rule “Clean Water Rule: Definition of ‘Waters of the United States’” published on June 29, 2015 and rescind or revise the rule so as “to ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.” The Order also states that US EPA and the Corps “shall consider interpreting the term ‘navigable waters,’ as defined in 33 U.S.C. 1362(7), in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006).”

The “waters of the United States” rulemaking that was finalized in 2015 expanded federal jurisdiction over waters that were not previously covered. As a result, 31 states and several other parties sought judicial review on substantive and procedural grounds in multiple actions brought in Federal courts. On October 9, 2015, the Sixth Circuit issued a nationwide stay of the 2015 definition of “waters of the United States.” On January 13, 2017, the US Supreme Court granted certiorari to review the question of whether a court of appeals has original jurisdiction to review challenges to the 2015 rulemaking. The Sixth Circuit has ordered that the briefing schedule be held in abeyance pending a US Supreme Court decision on the issue of its jurisdiction.

With respect to this Proposed Rule implementing the “first step” to rescinding and revising the definition of “waters of the United States,” the agencies have extended the comment period until September 27, 2017. The second step of this process will involve a rulemaking whereby the agencies will conduct “a substantive re-evaluation of the definition of ‘waters of the United States.’”