On July 27, 2017, the Federal EPA and U.S. Army Corps of Engineers published a proposed rule to re-adopt Waters of the US (WOTUS) regulations that pre-date the Obama-Administration’s 2015 Waters of the U.S. (WOTUS) rule. Since the 2015 WOTUS rule was stayed by the courts in the Fall of 2015, the older definition from previous publications of the Code of Federal Regulations (CFR) has been in effect, even though the official regulatory language in the Code of Federal Regulations from 2015 has not yet been removed. This posed problems for the regulated community as projects facing a lengthy review time grappled with uncertainty over the interpretation of WOTUS. Changes to the WOTUS rule have far reaching effects on many sectors of the economy from farming to manufacturing, utility and road infrastructure to home building. This proposed rule to revert the official regulatory language in the Code of Federal Regulations will reduce some of the short-term speculation, but the long-term course is still unknown.
Any long-term changes will depend on the result of the federal agencies’ future “substantive reevaluation of the definition of ‘waters of the United States’”. As the second part in the EPA and Corp’s “two-step process” to address WOTUS, this “reevaluation” is proposed after the old definition is re-adopted. Since there is no official timetable for this “reevaluation”, it is unclear how long prospective permittees will have to pursue projects under the re-adopted rule. What we do know is that the 2015 WOTUS rule was out for public comment for almost a year, and any substantive new revisions to WOTUS will be heavily scrutinized by many stakeholders. The most permanent solution would be for Congress to pass a law finally clarifying the definition of “Waters of the US,” but let’s not waste too many pennies wishing on that well.
In the short-term, the proposed re-adoption of prior WOTUS definitions will help provide immediate clarity to project proponents about to run the permitting gauntlet. With the 2017 Nationwide Permits now finalized and issued, project proponents also have the benefit of starting at the beginning of the Nationwide Permit cycle.
If you are considering moving forward with a potential project and have questions you can contact me at firstname.lastname@example.org. Josiah Frey is an Environmental Scientist and Certified Wetland Botanist at Smith Management Group.