The EPA and the Army Corps of Engineers (Corps) announced a series of public teleconferences for stakeholder input on recommendations to revise the definition of “Waters of the United States” under the Clean Water Act.  This definition is critical to the determination of whether wetlands or water discharge permits are required for construction projects or operations across all industries.  In total, there will be ten teleconferences beginning on September 19, 2017, nine of which will be tailored to a specific industry sector and one of which will be open to the public at large (see summary below).  The session specific to the energy, chemical and oil and gas industries is scheduled for October 24, 2017.  The teleconferences will run throughout the fall on Tuesdays from 1 to 3 pm eastern. 

The purpose of the teleconferences is to provide for broad pre-proposal input on a new definition that would replace the 2015 expanded definition of “waters of the U.S.”, pursuant to the February Trump administration Executive Order.  That rule, which is currently stayed by the Sixth Circuit Court of Appeals, impacted certain longtime exclusions including for converted cropland and waste treatment systems and was the subject of heated judicial challenges on both substantive and procedural grounds.  In February, the Trump administration signed an Executive Order which directs the EPA and the Corps to rescind or revise the 2015 rule, and in doing so consider interpreting “navigable waters” in a manner consistent Justice Scalia’s opinion in Rapanos v. U.S.  Scalia’s Rapanos plurality opinion limited such waters to “only those relatively permanent, standing or continuously flowing bodies of water” and wetlands with a continuous surface connection to relatively permanent waters such as streams, oceans, lakes, and rivers.  In July, the EPA and the Corps proposed to recodify the regulation in place prior to the 2015 final rule until they can propose a new definition of “Waters of the U.S” (comment period on that proposal ends on September 27, 2017).

These teleconferences will inform a new proposed definition of “Waters of the U.S.”  EPA will provide background on the rulemaking process and progress to date during the teleconferences.  Registration information can be found here, and must be completed a week before the webinar.  Organizations wishing to provide verbal recommendations will be selected on a first-come, first-serve basis and oral comments will be limited to 3 minutes.  Written recommendations will also be accepted to the public docket on or before November 28, 2017. 

While the agencies will not be formally responding to recommendations, whether submitted by teleconference or in writing, this is an important opportunity for the industry to shape the revision of a critical definition which impacts the scope and reach of the Clean Water Act.

No. Sector Teleconference Date
1 Small Entities September 19, 2017
2 Environment and Public Advocacy September 26, 2017
3 Conservation (hunters and anglers) October 3, 2017
4 Construction and Transportation October 10, 2017
5 Agriculture October 17, 2017
6 Industry (energy, chemical, oil/gas) October 24, 2017
7 Mining October 31, 2017
8 Scientific Organizations and Academia November 7, 2017
9 Stormwater, Wastewater management, and Drinking Water agencies November 14, 2017
10 Meeting Open to the General Public November 21, 2017