On December 28, 2018, the EPA published in the Federal Register a revised definition of “waters of the United States” (the “Proposed Rule”), as used in the Clean Water Act, to replace the current definition that was finalized in 2015 (the “Obama WOTUS Rule”). The new rule seeks to limit the scope of regulated waters. The Obama WOTUS Rule has been widely criticized by the agricultural industry and many states as being overly broad and confusing. The EPA is taking comments until the end of February. When the comment period ends, the EPA will review the comments and decide whether to proceed with the rulemaking process by issuing a final or a revised rule, or to withdraw the proposal altogether. If the EPA decides to issue a final rule, the EPA will announce and publish the final rule in the Federal Register. As with any agency action, any final rule may be challenged in court and enforcement of that rule may be delayed pending resolution of the suit or release from the injunction.
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