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The Environmental Protection Agency and the Department of the Army ("the agencies") published this proposed rule to initiate the first step in a comprehensive, two-step process to revise the definition of "waters of the United States" consistent with the Executive Order signed on February 28, 2017.

Statement of Need:

This rulemaking action responds to the February 28, 2017, Presidential Executive Order entitled Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the Waters of the United States’ Rule. To meet the objectives of the EO, the agencies are engaged in a comprehensive two-step rulemaking process. Under the first step of this rulemaking process, the agencies are seeking to recodify the regulatory text that was in place prior to the 2015 Clean Water Rule and that is currently in place as a result of the stay ordered by the U.S. Court of Appeals for the Sixth Circuit.

Summary of the Legal Basis:

The rule is proposed under the Clean Water Act, 33 U.S.C. Section 1251 et seq.

Alternatives:

In this first step, the agencies have proposed as an interim action to repeal the 2015 definition of waters of the United States and codify the legal status quo that is being implemented now under the Sixth Circuit stay of the 2015 definition of waters of the United States and that was in place for decades prior to the 2015 rule. This rule would result in the recodification of what is in place under the Court stay (i.e., the regulation as it existed prior to the 2015 rule) so that the rules are clear and certain while agencies engage in a second rulemaking to reconsider the definition. As a result, the agencies did not propose any alternatives for this proposed rule.

Anticipated Costs and Benefits:

The agencies estimated the avoided costs and forgone benefits of repealing the 2015 rule. Annual avoided costs range from $162.2 to $313.9 million for the low end scenario and $242.4 to $476.2 million for the high end scenario (at 2016 price levels). All of the forgone benefit categories were not fully quantified in the economic analysis for the proposed rule (noted with $B). The annual forgone benefits range from $33.6 + $B to $44.5 to $B for the low end scenario and $55.0 + $B to $72.8 + $B in the high-end scenario. The economic analysis can be found in the docket for the proposed rulemaking.

Risks:

Because the proposed rule maintains the status quo, there are no environmental or health risks associated with this effort.