On July 12, the U.S. Environmental (EPA)
and U.S. Army Corps of Engineers (Corps) sent the final version of their “Step
One” rescission rule that is part of their two-part rulemaking to
rescind-and-replace the Obama era 2015 “Waters of the U.S.” (WOTUS) Rule to the
Office of Management and Budget (OMB) for interagency review. The WOTUS definition
describes the jurisdictional reach of the Clean Water Act (CWA), and in turn
where CWA National Pollutant Discharge Elimination System (NDPES) permitting
applies, including NPDES Pesticide General Permits. Reaching OMB review is an
important milestone in the EPA/Corp rulemaking initiated in 2017.
Back in 2017, the proposed “Step One”
rescission rule garnered broad stakeholder attention and the agencies received
around 700,000 comments, including comments from NAAA in support of the
rescission. The rescission would remove the language of the 2015 WOTUS Rule
from the Code of Federal Regulations
and replace it temporarily with the pre-2015 definition until the EPA/Corps issue
the final “Step Two” replacement WOTUS definition. NAAA commented on the proposed
version of the Step Two replacement definition in April 2019.
The EPA’s most recent regulatory agenda
indicated it planned to publish the final “Step Two” rule in Fall 2019. The
timing of OMB review indicates EPA is on track for its anticipated schedule. However, whether the “Step One” rescission
rule will actually take effect in 2019 remains to be seen. Legal challenges are
likely to follow soon after the rescission is published in final that could
delay or stay its implementation. If
stayed, the 2015 rule could then remain in effect in the patchwork of 22 states
where it is currently in play following various court decisions challenging the
rule. NAAA continues to remain actively
engaged on tracking and reporting WOTUS developments.
and U.S. Army Corps of Engineers (Corps) sent the final version of their “Step
One” rescission rule that is part of their two-part rulemaking to
rescind-and-replace the Obama era 2015 “Waters of the U.S.” (WOTUS) Rule to the
Office of Management and Budget (OMB) for interagency review.){kind=small}
