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Proposed Rule: Definition of “Waters of the United States” – Recodification of Pre-existing Rules

The EPA Administrator, Scott Pruitt, along with Mr. Douglas Lamont, senior official performing the duties of the Assistant Secretary of the Army for Civil Works, signed the following proposed rule on June 27, 2017. The proposed rule published in the Federal Register (FR) on July 27, 2017, and will be open for public comment until August 28, 2017. The public is invited to submit comments identified by Docket ID No. EPA-HQ-OW-2017-0203, at http://www.regulations.gov.

Summary

The Environmental Protection Agency and the Department of the Army (‘‘the agencies’’) are publishing this proposed rule to initiate the first step in a comprehensive, two-step process intended to review and revise the definition of ‘‘waters of the United States’’ consistent with the Executive Order signed on February 28, 2017, ‘‘Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.’’ This first step proposes to rescind the definition of ‘‘waters of the United States in the Code of Federal Regulations to re-codify the definition of ‘‘waters of the United States,’’ which currently governs administration of the Clean Water Act, pursuant to a decision issued by the U.S. Court of Appeals for the Sixth Circuit staying a definition of ‘‘waters of the United States’’ promulgated by the agencies in 2015. The agencies would apply the definition of ‘‘waters of the United States’’ as it is currently being implemented, that is informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding practice. Proposing to re- codify the regulations that existed before the 2015 Clean Water Rule will provide continuity and certainty for regulated entities, the States, agency staff, and the public. In a second step, the agencies will pursue notice-and- comment rulemaking in which the agencies will conduct a substantive re- evaluation of the definition of ‘‘waters of the United States.’’

Executive Summary

What This Proposed Rule Does

In this proposed rule, the agencies define the scope of ‘‘waters of the United States’’ that are protected under the Clean Water Act (CWA). In 2015, the agencies published the ‘‘Clean Water Rule: Definition of ‘Waters of the United States’’’ (80 FR 37054, June 29, 2015), and on October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit stayed the 2015 Rule nationwide pending further action of the court. The agencies propose to replace the stayed 2015 definition of ‘‘waters of the United States’’, and re-codify the exact same regulatory text that existed prior to the 2015 rule, which reflects the current legal regime under which the agencies are operating pursuant to the Sixth Circuit’s October 9, 2015 order. The proposed regulatory text would thus replace the stayed rulemaking text, and re-codify the regulatory definitions (at 33 CFR part 328 and 40 CFR parts 110; 112; 116; 117; 122; 230; 232; 300; 302; and 401) in the Code of Federal Regulations (CFR) as they existed prior to the promulgation of the stayed 2015 definition. If this proposed rule is finalized, the agencies would continue to implement those prior regulatory definitions), informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding agency practice.

California Land Use Law & Policy

State Water Board Approves Removal of Drinking Water Standard for Hexavalent Chromium

State Water Board Approves Removal of Drinking Water Standard for Hexavalent Chromium

On August 1, 2017, the California State Water Resources Control Board adopted a resolution to remove the current maximum contaminant level (MCL) for the pollutant hexavalent chromium found in drinking [...]