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Administration Invites Additional Public Comment on "Waters of the United States" Rulemaking

September 7, 2017

The U.S. Army Corps of Engineers and the Environmental Protection Agency will hold nine teleconferences to solicit public comments and recommendations on revising the definition of "Waters of the United States" under the Clean Water Act.  82 Fed. Reg. 40742 (Aug. 28, 2017). The outreach is focused on soliciting recommendations from specific industries, science and academia. Industries such as transportation and construction, agriculture, mining, energy, chemical manufacturing, and water utilities are particularly invited to attend. The definition is important because it controls the limits of federal jurisdiction under the Clean Water Act to direct private parties' conduct. All written recommendations submitted by November 28, 2017 will be included in the administrative record accompanying the rulemaking. Pre-registration is required

The President's Executive Order, "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule" directed federal agencies to review the EPA's June 2015 Rule and consider whether to rescind or revise it, consistent with Justice Scalia's opinion in Rapanos v. United States, 547 U.S. 715 (2006). See this Clark Hill alert. The 2015 rule has been stayed nationwide by the U.S. Court of Appeals for the Sixth Circuit, and the agencies have reverted to operating under the regulatory definition that existed prior to promulgation of the 2015 rule.[1]The newly scheduled outreach will provide information on which the agencies will rely as they develop a new proposal consistent with the President's directive. 

Affected industries should seize this unique opportunity to provide recommendations on the front end, while the proposed rule is being developed, rather than waiting to comment on whatever the agencies have said they intend to do. Clark Hill environmental attorneys can assist clients with identifying and explaining why it matters for their businesses where the lines between federal and state CWA jurisdiction are drawn, and outlining better approaches than those in the 2015 rule. 

For assistance with strategic development of oral and written comments on issues important to your company, contact Karen C. Bennett at | (202) 572-8676, Jane C. Luxton at | (202) 572-8674, Kenneth von Schaumburg at | (202) 772-0904, William J. Walsh at | (202) 772-0924, or another member of Clark Hill's Environment, Energy & Natural Resources practice group.  


[1] On July 27, 2017, the agencies proposed to re-codify the regulatory definition that existed prior to the 2015 final rule. 82 Fed. Reg. 34899. See this Clark Hill alert.

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