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In 2015, the Environmental Protection Agency (EPA) and the Department of the Army (the agencies”) published the Clean Water Rule: Definition of Waters of the United States”(80 FR 37054, June 29, 2015). On February 28, 2017, the President issued Executive Order 13778 entitled 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. On July 27, 2017, the agencies published a proposed rule as the first in a two-step process. On February 14, 2019, the agencies published a Federal Register notice proposing to revise the definition of ‘waters of the United States’ consistent with Executive Order 13778; the 60-day comment period closed on April 15, 2019. 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 the Executive Order. The agencies plan to finalize the revised definition after reviewing public comments on the proposal.

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 to repeal and revise the definition of "Waters of the United States" promulgated in 2015. Under the second step of this rulemaking process, the EPA and the Department of the Army are developing a revised definition of "waters of the United States" in accordance 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:

The first step of the two-step rulemaking process repealed the 2015 definition of Waters of the United States and recodified the preexisting regulations as interpreted by the Supreme Court and implemented through agency guidance. An alternative to the second step rule is to retain the recodified prior regime finalized in the first step of the rulemaking.

Anticipated Costs and Benefits:

Unknown at this time.

Risks:

Any environmental or human health risks will be indirect effects.