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EPA Moving Forward With Plans to Rescind WOTUS Definition

The U.S. Environmental Protection Agency (EPA) is moving forward with plans to rescind the definition of what constitutes Waters of the United States (WOTUS), the first in a two-step process to review and revise the controversial Clean Water Rule (CWR).

With a notice published in Thursday's edition of the Federal Register, the EPA launched a 30-day public comment period on plans to rescind the WOTUS definition. Comments will be accepted until Aug. 28.

The move follows, to the letter,plans outlined in April by EPA Administrator Scott Pruitt. Those plans called for EPA to initiate a public rulemaking to rescind the CWR and revert to laws governing water protection that were first enacted in 1986. The agency will then promulgate a revised definition of WOTUS, which defines what waterbodies deserve protection under the federal Clean Water Act.

EPA and the Army Corps of Engineers jointly promulgated the CWR and unveiled it in May 2015, during the Obama administration. But in October of that year, the Sixth District Court issued a stay and blocked it from being implemented.

Last February, President Trump signed an executive order instructing EPA and the Army Corps to review the CWR. Although the order did not repeal the CWR outright, it kicked off a review and rulemaking process that was expected to extend into 2018.

According to EPA, the proposed WOTUS definition would include all territorial seas, interstate waters and wetlands and all waters that are currently being used -- or which were used in the past or which may be susceptible for use in interstate or foreign commerce -- including all waters subject to the ebb and flow of the tide. It also includes certain impoundments, tributaries and adjacent waters, including wetlands.

Opponents of the rule, including the oil and gas industry, worry that it is so broad that it could be used to include ditches and ruts in dirt roads that captured rainwater.

Republicans in Congress have been working on a second track to abolish the CWR. Earlier this month, the House Appropriations Committee included a policy rider in the energy and water spending bill for fiscal year 2018 that authorizes the EPA and the Army Corps to withdraw the rule. House Democrats then attempted to add an amendment to remove the policy rider, but it failed along party lines.

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