As previously reported, President Trump has issued an Executive Order calling on EPA and the U.S. Army Corps of Engineers (Corps) to formally review the “Clean Water Rule” also known as the Water of the United States (WOTUS) Rulemaking. On April 19, EPA laid outs its plans for revising the Clean Water Rule consistent with the Executive Order in a meeting with state and local officials.

EPA envisions a two step process through which it will (i) recodify the regulation in place prior to the issuance of the Clean Water Rule, which is currently the effective regulation due to the nationwide stay of the Rule issued by the U.S. Court of Appeals for the Sixth Circuit, and (ii) ultimately issue a revised rulemaking. Citing uncertainty over the length of the Sixth Circuit stay, EPA believes reinstating the preexisting regulation will increase certainty as to which regulation is in effect pending the issuance of a new rule. As encouraged by the Executive Order, EPA intends for the new definition to reflect the principles that Justice Scalia outlined in the Rapanos v. U.S., 547 U.S. 715 (2006) plurality opinion.

In Rapanos, Justice Scalia interpreted “navigable waters” to mean waters that are “relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] … oceans, rivers, [and] lakes.’” Rapanos v. U.S., 547 U.S. 715, 719 (2006) (citing Webster’s Dictionary).  EPA intends to consult with state and local government officials in developing a new definition.

EPA laid out three potential approaches to determining what constitutes “relatively permanent” waters. First, EPA will consider including: perennial streams plus streams with “seasonal” flow (typically three months of flow); perennial streams plus streams with another measure of flow such as frequency of flow or intersecting water tables; or include only perennial streams (streams that carry flow throughout the year except in extreme drought). In determining how to regulate “continuous surface connections,” EPA will also consider three options, including regulating: only surface connections even through non-jurisdictional features; connections where there is some degree of connectivity based on metrics such a distance; or only wetlands that directly touch a jurisdictional water.

EPA has asked for feedback on these concepts, as well as other suggestions, from the state and local officials by mid-June. EPA did not indicate when it plans to publish the recodified regulation in the Federal Register. EPA’s powerpoint presentation outlining its plans is available here.