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The Environmental Protection Agency and the Department of the Army ("the agencies") are publishing this proposed rule as a second 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. This follows the first step which is seeking to recodify the preexisting definition of "waters of the United States." In this second step, the agencies are conducting a substantive re-evaluation and revision of the definition of "waters of the United States" in accordance with Executive Order 13778, Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”

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 EPA and Department of the Army (agencies) are engaged in an expeditious two-step rulemaking process. This action follows the first step which is seeking to recodify the pre-existing definition of waters of the United States. In this second step, the agencies are conducting a reconsideration of the definition of waters of the United States consistent with the Executive Order.

Summary of the Legal Basis:

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

Alternatives:

Alternatives have not yet been developed at this time. The Executive order. directs the agencies to consider a defining "waters of the United States" consistent with Justice Scalia's opinion in Rapanos.

Anticipated Costs and Benefits:

An economic analysis analyzing anticipated costs and benefits will be developed for the rulemaking at the time of proposal.

Risks:

The agencies will be able to analyze the risks of the proposed rulemaking once policy decisions have been made.