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In 2015, the Environmental Protection Agency and the Department of the Army (the agencies) published the Clean Water Rule: Definition of "Waters of the United States" (2015 Rule) 80 FR 37054, June 29, 2015). 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. On February 28, 2017, the President signed Executive Order 13778, Restoring the Rule of Law, Federalism, and Economic Growth by reviewing the "Waters of the United States" Rule, which instructed the agencies to review the 2015 rule and rescind or replace it as appropriate and consistent with law. The agencies published a proposed rule to initiate the first step in a comprehensive, two-step process consistent with the Executive order. In this first step, the agencies sought to recodify the definition of "Waters of the United States" that existed prior to the 2015 Rule. This rule for the first step will now be finalized.

Statement of Need:

This rulemaking action responds to the February 28, 2017, Presidential Executive Order: Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘"Waters of the United States" Rule. To meet the objectives of the Executive order, the agencies are engaged in a comprehensive two-step rulemaking process. Under the first step of this rulemaking process, the proposed rule will 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 Agencies' February 2018 final rule to add an applicability date of February 6, 2020 to the 2015 Rule.

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 to repeal the 2015 definition of "waters of the United States" and codify the legal status quo that is currently being administered in light of the February 2018 final rule to add an applicability date to the 2015 Rule. This rule will result in the recodification of the regulations that existed prior to the 2015 Rule to provide regulatory certainty while the agencies engage in a second rulemaking to reconsider the definition of "waters of the United States." 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. The annual forgone benefits range from $33.6 million + unquantified forgone benefits to $44.5 million + unquantified forgone benefits for the low-end scenario and $55.0 million + unquantified forgone benefits to $72.8 million + unquantified forgone benefits 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.