NACo Update on “Waters of the US” Rule Withdrawal

Conduit Street, the United States Environmental Protection Agency (EPA) and Army Corps of Engineers have begun the process of withdrawing a recent rule change regarding the definition of “Waters of the US” under the federal Clean Water Act. The definition would have expanded the “Waters of the US” definition to include wetlands and waterways with “intermittent flows.” A National Association of County (NACo) County News article (2017-07-13) provided further detail on the withdrawal:

The proposed rule on Definition of “Waters of the United States” – Recodification of Pre-existing Rules would withdraw the 2015 rule and reinstitute regulations that were in place prior to the 2015 WOTUS rule. Once the recodification notice is published in the Federal Register, the EPA and Corps will accept public comments on the proposal for 30 days. The agencies’ action is in accordance with President Trump’s Feb. 28 executive order, Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the U.S.” Rule. As step two of the process, the agencies plan to release a revised WOTUS proposed rule sometime this fall. The revised definition is expected to be narrower in scope and limited to those waters that flow most of the year. …

In April, the EPA and the Corps met with state and local government partners to brief them on the two-step WOTUS withdrawal and rewrite efforts in accordance with Executive Order 13132, issued by President Bill Clinton in 1999.  EO 13132 requires federal agencies to consult with state and local government officials and/or their national associations on yet-to-be proposed rules and regulations that would directly impact state and local governments.

Many local governments across the US had raised concerns regarding the change in the definition – fearing that the language would bring local government structures with intermittent water flows, such as roadside drainage ditches and stormwater drainage pipes, under the purview of the Clean Water Act. The article stated that NACo joined the National League of Cities and the U.S. Conference of Mayors in submitting a joint letter raising this concern and calling for the definition to be scrapped and more collaborative process be implemented to modify the definition. MACo submitted separate comments to the EPA arguing that at a minimum the definition be clarified to exempt ditches and stormwater structures.

Useful Links

Prior Conduit Street Coverage of Waters of the US