The Environmental Protection Agency (EPA) and the Army Corps of Engineers issued a proposed rule under the Clean Water Act (CWA) that would distinguish water subject to federal regulation from water subject to state and tribal jurisdiction. The rule, published on February 14, 2019, revises definitions of “waters of the United States” established in 1986 and 2015 that have been subject to years of court battles.
According to the EPA’s notice of proposed rulemaking, the new rule will change the definition of the waters of the United States in order to comply with the text of the CWA and Supreme Court precedent better than the 2015 definition. In addition, the agency claims that the new rule would be easier to implement than the 2015 definition because it uses a more straightforward definition of waters, such as oceans, rivers, and lakes, as opposed to “ephemeral geographic features that are dry almost all of the year.”
The rule follows President Trump’s Executive Order 13778, which directed agencies to review the 2015 definition to see if it was consistent with keeping navigable waters free from pollution while promoting economic growth, minimizing regulatory uncertainty, and respecting the roles of Congress and the states under the U.S. Constitution.
Proposed rules are preliminary versions of a prospective federal agency regulation. If an agency determines that a new regulation is necessary, the agency develops a proposed rule for publication in the Federal Register. After a period of public comment, the agency may determine to revise the proposed rule, abandon the proposal, or move forward to the final rule stage of the rulemaking process.