E P A ?S L O C A L G O V E R N M E N T A D V IS O R Y CO M M ITTEE {LGAC) D R A FT C H A R G E ON `W A T E R S O F THE U.S.' fW OTUS)
OVERVIEW
1, B a ckg ro u n d and Description
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On February 28, 2017, the President signed the Executive Order on Restoring the H illmf Law, Federalism, and
Economic Growth by Reviewing the "Waters of the United ..................(issued June 2 illfr ,1The Executive
Order gives direction to the Administrator and the Assistant S e e t lllP of the Army for C iv ilijlirk s to review the final Clean Water Rule (CWR) and "publish for notice and coHSnt a proposed rule rescindiB||||;:revising the
ruie." The E.O. aiso directs that ERA and the Army "shall eoff|j| interprefj||j|he term `navigable waters' in a
manner "consistent with Justice Scaiia's opinion in Rapanos
cluilllfeiativeIv permanent waters and
wetiands with a continuous surface connection to jplatively permah|||||pfers.
As part of ERA'S efforts to consult with state and lliif P llc m m e n t o ffic liillS P A 's Locai Government Advisory Committee (LGAC) will provide its recommendatioWlo ttilijlitin istra to r b lliiv isin a the definition of "Waters of the United States" (WOTUS) and identifying ways t o lliu c e th A liilia fo rv b u A lp on locai communities as weii as balance that with environmental protection.
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The agencies intend to foilolllih.expediticilfco-step p r o c lllfo provide certainty with the rule:
1) Establish.the, leaai il|l||j||id by re-co8#ng the reguiation that was in piace prior to issuance of
th illlfP f.H liliiih d e rth lililS . Court of Appeals for the Sixth Circuit's stay of that rule.
fiiiiliropose a new d elillld n of w M Ies of the U.S. that would repiace the 2015 CWR that reflects the ..I llijp le s outlined b y i||fice S c illf (Rapanos plurality opinion).
The LGAC cenbllilldf 36 lo c a llllite and tribal government elected and appointed officiais representing cities, parishes, co(il||:,jhilpipaiities, and other local political jurisdictions. Local officials are knowledgeable and pfovitelnique perspectives on issues relating to a revised ruie. Further, the LGAC has potential to engage other knowledgeable local officials with unique valuable on-the-ground perspectives and knowledge. Through this collaborative process, the chartered LGAC will provide Administrator Pruitt with expeditious and meaningful advice relating to a revised "Waters of the U.S." ruie. Overall, the goal would be to develop recommendations to the ERA for consideration on a revised ruie. This advice and recommendations come from an `on the ground' locai government perspective which will assist, the agency in providing the best means to communicate a revised ruie with local officiais.
1 !htps://wwwAvhitehouse.gov/the pre$-offic8/2017/02/28/presidential-exeuctive-order-restonng-rule-law-federaHsm-
an-economic
2Rapanos v. United States, 547 U.S. 715 (2006) 126 Supreme Court 2208; 185 !.. Ed. 2d 159
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LGAC Charge:
The LGAC w ill develop recom m endations for the EPA to consider in developing approaches to a revised rule defining "w aters o f the U.S." that ensures that the nation's w aters are kept free from pollution while at the same tim e promoting economic growth and minimizing regulatory uncertainty. The following are specific charge questions and issues for the LGAC to consider:
Charge Questions
1) How w ould you like to see the concepts of 'relatively perm anent' and 'continuous surface connection' be defined? How would you like to see the agencies interpret 'consistent with Scalia'? Are there particular features or implications of any such approaches that the agencies should be mindful o f in developing the step 2 proposed rule?
2) W hat opportunities and challenges exist for your locality w ith relying on Justice Scalia's opinion?
3) Are there other approaches to defining "w aters of the U.S." that you w ould like the agencies to consider to providing clarity and regulatory certainty?
4) The agencies' econom ic analysis for step 2 intends to review programs under CW A 303, 311, 401, 402 and 404. Are there any other programs specific to your locality that could be affected but w ould not be captured in such an econom ic analysis?
5) W hat additional inform ation can you provide from a local governm ent perspective that EPA should be aware of?
6) Are there other issues the agencies should consider w hich w ould help ease the regulatory burden for im plem entation of WOTUS for state, local and tribal government?
7) W hat should the agencies consider in com m unicating the final rule to state, local and tribal governments to help them fully understand these regulatory changes and im plem enting them efficiently and most cost-effectively?
8) The W orkgroup w ill also develop recom m endations on how the EPA can better w ork w ith local governm ents and engage local governm ents on issues such as: W hat additional regulatory issues could be revised or clarified to more effectively to help local governments understand how this rule would apply? Are there additional policy discussions that could help address local questions about im plem entation, in agricultural and rural small com m unities? Are there other considerations such as ditch maintenance, storm w ater m anagem ent or green infrastructure?2
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4. Deliverables
The LGAC will provide a Setter ot recommendation to the Administrator to identify approaches to consider in a revised "Waters of the U.S." ruie. The chartered LGAC will prioritize and summarize these issues in a report to the ERA that focuses on the charge issues. A final LGAC report will be conveyed to the ERA Administrator with a transmittal letter summarizing findings and recommendations. This Report wii! be published on the ERA'S website for LGAC.
5, Preliminary Tlmeline/Sciieclule
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April 26, 2017 - Executive Committee meets to discuss and approve the.i t l l i t l s Charge (Protecting America's Waters Workgroup) and develops a work plan with iimeline||||l
May 3TM LG AC's Protecting America's Waters Workgroup meets t illllb u s s charge (billjileconference).
May 17- LGAC's Protecting America's Waters Workgroup rni i l lWith National Interooverllllriial organizations to discuss charge (via teleconference),
June 7 - LGAC's Protecting America's Waters Workgroup m i i i l i o (Jj||ip l charge (via teleconference).
June 28, 2017-The LGAC meets in a public m |||||.. telecenferlile) to review recommendations on rescission of the 2015 CWR and revising the c j K r f lliiie r a b le : Lettei|iieeommendation)
APPRO VAL AMIIAUTHORITY TO PROCEED
We approve the project as described above, and authorize to proceed.
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Name
I Title
Date
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Approved By
Date
Approved By
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