Work Continues on New WOTUS Rule

April 26, 2018

U.S. EPA and the Army Corps of Engineers are preparing to issue a "supplemental” proposed rule intended to solidify the record and reasoning behind their 2017 repeal of the 2015 (Obama-era) Waters of the U.S. (WOTUS) rule.  The 2015 rule is considerably overbroad in its reach and interpretation of what waterways are covered by the Clean Water Act (CWA).  This latest “supplemental” proposal addresses the deficiencies found in the 2017 repeal rule.

The supplemental proposal is now at the Office of Management and Budget (OMB) for federal interagency review and clearance.  Issuance of this supplemental proposed rule is a top priority and efforts are being made to finish the OMB review quickly so that the rulemaking process can move forward.

In the meantime, phase two of the “repeal and replace effort,” the development of a new, proposed WOTUS rule, continues to move forward in EPA and is expected to be issued for public comment before the end of the year.  There are numerous legal efforts underway in multiple federal district court jurisdictions that challenge and support the 2015 rule as well as challenge and support the “repeal” rulemaking.  As a result, definitive answers to questions about how the CWA WOTUS jurisdiction might apply to UEP member operations under these confusing circumstances may not exist; but if you have questions, please contact UEP and the staff and consultants will provide the best information available.