Earlier this month the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) held a consultation meeting with the national state and local government associations on their yet-to-be proposed “Waters of the U.S.” (WOTUS) rule under the requirements of Executive Order (EO) 13132 on Federalism. EO 13132 requires federal agencies to consult with elected state and local government officials (or their respective national organizations) on yet-to-be drafted rules that impact state and local governments.
The meeting was a result of President Trump’s February 28 Executive Order (EO) on “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” The EO directs the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) to revisit and rewrite the 2015 WOTUS rule.
According to the EPA and Corps, the agencies will use a two-step process to withdraw and rewrite the rule. First, as part of the withdrawal effort, the agencies will move to reinstate preexisting regulations and guidance that were in place prior to the 2015 WOTUS rule and currently used now due to the ongoing litigation with the 2015 rule. Second, the agencies plan to develop a new WOTUS definition based on Supreme Court Justice Antonin Scalia’s opinion in Rapanos v. United States, 547 U.S. 715 (2006). Justice Scalia’s plurality opinion stated that federal jurisdiction should only include waters with a relatively permanent flow. The agencies are assessing several options including how “relatively permanent” waters and wetlands with a “continuous surface connection” should be defined.
Under EO 13132, comments will be accepted from local governments on both the two-step process to withdraw and rewrite the rule and the Scalia “relatively permanent” approach to determine WOTUS jurisdiction. They will also accept comments from state and local governments on other potential approaches. Since this comment period is part of an EO 13132 Federalism consultation, the agencies are only accepting comments from state and local governments. Written comments are due by June 19; please send them to EPA staff at CWAwotus@epa.gov.
VACo Contact: Larry Land, CAE