WOTUS: Where Are We Now?

In February 2017, President Trump issued an Executive Order which required the EPA and COE to “rescind or revise” the 2015 Rule.  The Order said that the agencies should “consider interpreting” the term consistent with Justice Scalia’s opinion in Rapanos. In June, the EPA announced it would be taking the first step to rescind the 2015 Rule and to re-codify the definition of WOTUS prior to the passage of the 2015 rule.Where Are We Now? Rescinding a rule already promulgated is not as simple as it may sound.  The EPA has published a new proposed rule in the Federal Register, which essentially seeks to codify the rule as it was prior to the 2015 EPA rule being passed (and, due to the 6th Circuit stay, the approach currently in place across the US).  Specifically, the proposed rule would rescind the 2015 approach and codify an approach consistent with the Rapanos Supreme Court decision, applicable case law, and other longstanding agency practices. Now, notice and comment rulemaking will take place, which will allow the public to offer input on the new proposed rule.  This period is open through August 28, 2017.  After that, the EPA plans to conduct a “substantive re-evaluation” of the definition of WOTUS and conduct notice and will likely propose a new rule after property notice and comment rulemaking occurs. Meanwhile, the 2015 rule is not in force anywhere in the United States, as the 6th Circuit stay remains in place.  Thus, currently, the definition of WOTUS is governed by the pre-2015 rule that got us the complex decision in the Rapanos case.  Unfortunately, until a new rule is promulgated, landowners are left with trying to interpret the Rapanos decision in order to know whether federal permits are required on their land.Hopefully, the revised rule will offer more clarity and certainty for both the government and landowners alike.