2017-13997: Definition of “Waters of the United States”-Recodification of Pre-Existing Rules

Summary

The Environmental Protection Agency and the Department of the Army ("the agencies") are publishing this proposed rule to initiate the first step in a comprehensive, two-step process intended to review and revise the definition of "waters of the United States" consistent with the Executive Order signed on February 28, 2017, "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the `Waters of the United States' Rule." This first step proposes to rescind the definition of "waters of the United States" in the Code of Federal Regulations to re-codify the definition of "waters of the United States," which currently governs administration of the Clean Water Act, pursuant to a decision issued by the U.S. Court of Appeals for the Sixth Circuit staying a definition of "waters of the United States" promulgated by the agencies in 2015. The agencies would apply the definition of "waters of the United States" as it is currently being implemented, that is informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding practice. Proposing to re-codify the regulations that existed before the 2015 Clean Water Rule will provide continuity and certainty for regulated entities, the States, agency staff, and the public. In a second step, the agencies will pursue notice-and-comment rulemaking in which the agencies will conduct a substantive re-evaluation of the definition of "waters of the United States."

The agency’s own summary, as published.

What this changes

Amends 11 parts of the Code of Federal Regulations — the standing rules this notice rewrites.

• 33 CFR 328 Definition of Waters of the United States
• 40 CFR 110 Discharge of Oil
• 40 CFR 112 Oil Pollution Prevention
• 40 CFR 116 Designation of Hazardous Substances
• 40 CFR 117 Determination of Reportable Quantities for Hazardous Substances
• 40 CFR 122 EPA Administered Permit Programs: the National Pollutant Discharge Elimination System
• 40 CFR 230 Section 404(b)(1) Guidelines for Specification of Disposal Sites for Dredged or Fill Material
• 40 CFR 232 404 Program Definitions; Exempt Activities Not Requiring 404 Permits
• 40 CFR 300 National Oil and Hazardous Substances Pollution Contingency Plan
• 40 CFR 302 Designation, Reportable Quantities, and Notification
• 40 CFR 401 General Provisions