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EPA Extends Comment Period on WOTUS Rule Recodification

Posted on 8/25/2017 by Roger Marks

US EPA this week extended the public comment period for its proposed rule to recodify the definition of Waters of the United States (WOTUS). A key element of the Clean Water Act, the WOTUS definition expanded by US EPA and the Army Corps of Engineers in 2015.

Public comments on EPA’s WOTUS recodification proposal will now be accepted until September 27, 2017.

What is WOTUS?

watersNPDES.jpgThis definition of WOTUS sets the standard for which bodies of water EPA has authority to regulate under its Clean Water programs, including oil discharge notifications; oil spill prevention, control, and countermeasure (SPCC); permits to discharge pollutants or dredge/fill bodies of water; the “per-industry standards” at 40 CFR 405—471; and more.

When EPA and the Army expanded the WOTUS definition two years ago, industry groups feared that a broader definition could give regulators power to apply restrictions and requirements to activities and bodies of water not previously impacted by the Clean Water Act.

While the Final Rule took effect on August 28, 2015, it wasn’t for long. In October, a DC circuit court issued a nationwide stay of the expanded WOTUS definition.

 In February of this year, the President of the US issued an Executive Order requiring US EPA and the Army to rescind or revise the rule as appropriate.

What’s Next for WOTUS?

Before the 2015 Final Rule, EPA enforced a more narrow interpretation of “navigable” waters with respect to the WOTUS definition. The President’s EO requires EPA to adhere to that stricter definition of “navigable” as interpreted by Supreme Court Justice Anton Scalia in his opinion in the case Rapanos v. United States.

In that opinion, Scalia references an 1870 Supreme Court Case, The Daniel Ball, in which the court interpreted “navigable waters” to mean waters that are “navigable in fact or susceptible to being rendered so.”

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Tags: Act, Clean, EPA, new rules, Water

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