On Monday, June 12, EPA held a conference call regarding Waters of the United States (WOTUS). Participating on the call were Mark Pifher and Ian Lyle (NWRA).
The call began with a short PowerPoint giving historical and background information on the Clean Water Act, the Rapanos decision, and the recent Clean Water Act Executive Order. The meeting then shifted towards questions and comments (posted below.)
“The agencies are implementing the Trump Executive Order in two steps to provide as much certainty as possible as quickly as possible to the regulated community and the public during the development of the ultimate replacement rule.
The agencies are aware that the scope of CWA jurisdiction is of intense interest to many stakeholders and therefore want to provide time for appropriate consultation and deliberations on the ultimate regulation.
In the meantime, the agencies will continue to implement regulatory definition consistent with the SWANCC (2003) and Rapanos (2008) decisions, pursuant to the sixth circuit stay of the Clean Water Rule.” (EPA PowerPoint)
- What does EPA intend to do with the “Connectivity Report”? The bottom line is that “consistent with the Trump E.O.”, they are embarking on a new approach and “nothing” will be done with, or in response to, the Report. That said, if CWC has technical insights relative to the “new” rule proposal, or believe any new technical inquiries are necessary, EPA welcomes our thoughts.
- The prior regulations and guidance (pre-Rapanos based rule) will remain in place until something new is adopted.
- EPA would appreciate our thoughts on any “new” definitions, including why we think they would work in the regulatory context and how they are “consistent with” Scalia’s opinion.
- Ian Lyle described the unique characteristics of the arid West. EPA understood why we believe the rule needs to reflect those conditions. EPA will consider a “regional” approach to certain rule provisions. we are invited to make suggestions.
- If we don’t have specific language suggestions for a new rule, EPA would like our list of “governing principles”. (i.e. those concepts of the type identified by Scalia like state primacy, no land use controls, necessary link to water quality, perennial or at least seasonal flows, etc.)
Do you have any additional information that the EPA should be aware of? Do you have any other approaches that you would like the agencies to consider?
If so, please share your comments with CWAwotus@epa.gov cc: Hanson.Andrew@epa.gov by Monday, June 19, 2017. COn