The Update - A Monthly Newsletter on Regulatory Compliance
JULY 2017

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USEPA & Army Corps Move to Rescind WOTUS RuleUSEPA Extends RMP Effective Date to 2019USEPA Proposes Longer Stay for Portions of Oil and Gas Standards

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USEPA & Army Corps Move to Rescind WOTUS Rule

The U.S. Environmental Protection Agency (USEPA), Department of Army, and U.S. Army Corps of Engineers (USACE) are proposing to rescind the controversial Waters of the U.S. (WOTUS) Rule, within the 2015 Clean Water Rule. The move would return the Clean Water Rule’s regulatory text to the phrasing that existed prior to 2015 when WOTUS was redefined.

The USEPA says a second rulemaking will occur in which USEPA, the Department of Army, and USACE will engage in a ‘substantive re-evaluation of the definition of "waters of the United States.’” The proposed rule would be implemented in accordance with Supreme Court decisions, agency guidance, and longstanding practice.

"We are taking significant action to return power to the States and provide regulatory certainty to our nation's farmers and businesses," said USEPA Administrator Scott Pruitt. "This is the first step in the two-step process to redefine 'waters of the U.S.' and we are committed to moving through this re-evaluation to quickly provide regulatory certainty, in a way that is thoughtful, transparent and collaborative with other agencies and the public."

The announcement comes after a 20-state coalition, including North Dakota, South Dakota, Utah, and Wisconsin, sent a letter in June to the USEPA to preserve the States’ role in protecting the nation’s water. Attorneys General from 20 states offered suggestions within the letter on how USEPA can redefine the WOTUS Rule. The letter also requested that the USEPA to establish a concrete definition of the term “Waters of the U.S.” and to consider the role each State already plays in safeguarding its waterways. You can view the letter in its entirety here.

“I have said from the beginning that the WOTUS Rule is unlawful and significantly impinges upon States’ authority as the primary regulators of land and water resources within their borders,” says Wayne Stenehjem, North Dakota Attorney General. “North Dakota already provides legal protection for all of the waters in the state, and the WOTUS Rule adds massive federal bureaucracy without doing anything to increase water protection,” Stenehjem explained.

In February 2017, President Donald Trump issued an Executive Order directing the USEPA and the U.S. Army Corps of Engineers (USACE) to review and then rescind or revise the WOTUS Rule. Critics of WOTUS say it is contrary to the Congressional intent of the Clean Water Act (CWA), and it infringes on the ability of the States to regulate their own natural resources. The USEPA has said the Rule only applies to the types of waters that have historically been covered under the CWA, which does not include most ditches, groundwater, shallow subsurface flows, or tile drains.