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WOTUS Rule Appeal: EPA Seeks Comments on Rule

Published: August 30th, 2017

By: Dennis G. Corrick

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The week that the extended comment period on its controversial WOTUS Rule was ending, the U.S. Environmental Protection Agency (“EPA”) announced that it is opening a comment period on revising that rule. This proposed revision is in response to a February 28, 2017, Presidential Executive Order calling for review and for revising or rescinding the WOTUS rule.

The announcement, published in the Federal Register and attached hereto, provides that EPA will conduct ten teleconferences to hear stakeholder’s input on proposed revisions to the WOTUS Rule. Nine of these teleconferences will be for specific affected sectors, including agriculture, conservation, businesses and environmental groups. A tenth will be open to the general public. Recommendations should be submitted here and should be identified as provided in the statement.

What is the WOTUS Rule?

The WOTUS, or “Waters of the United States” rule, technically named the Clean Water Rule, was an Obama-era expansion of the application of the Clean Water Act (“CWA”). The rule expanded EPA jurisdiction beyond wetlands contiguous to navigable waters, and into small streams and ditches. This expansion drew resistance from numerous groups, among them agricultural interests and local governments. Following action by the Sixth Circuit Court of Appeals in 2015 which put implementation of the WOTUS Rule on hold, the U.S. Supreme Court agreed to hear arguments regarding that court’s claim of jurisdiction. The Sixth Circuit has postponed any action until the Supreme Court rules. During this stay, EPA is enforcing the CWA under interpretations of the scope of its jurisdiction used prior to the WOTUS Rule.

Dean Mead’s Agribusiness Industry Team will continue to monitor developments relating to challenges, implementation and modification of the WOTUS Rule. If you have questions, or would like assistance in submitting a comment on the rule, please contact Agribusiness Industry Team member Dennis Corrick at DCorrick@deanmead.com or (772) 464-7700.