Document ejpqY67Rq4QBG54eBbxbX164

EPA?S LOCAL GOVERNMENT ADVISORY COMMITTEE {LGAC) DRAFT CHARGE ON `WATERS OF THE U.S.' fWOTUS) OVERVIEW 1, Background and Description On February 28, 2017, the President signed the Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the "Waters of the United States" Rule (issued June 2015).12The Executive Order gives direction to the Administrator and the Assistant Secretary of the Army for Civil Works to review the final Clean Water Rule (CWR) and "publish for notice and comment a proposed rule rescinding or revising the ruie." The E.O. aiso directs that ERA and the Army "shall consider interpreting the term `navigable waters' in a manner "consistent with Justice Scaiia's opinion in Rapanos wvhieh includes reiatively permanent waters and wetiands with a continuous surface connection to relatively permanent waters. As part of ERA'S efforts to consult with state and loeai government officials, ERA'S Locai Government Advisory Committee (LGAC) will provide its recommendations to the Administrator on revising the definition of "Waters of the United States" (WOTUS) and identifying ways to reduce the regulatory burden on local communities as well as balance that with environmental protection. The agencies intend to follow an expeditious two-step process to provide certainty with the rule: 1) Establish the legal status quo by re-codifying the regulation that was in place prior to issuance of the CWR now under the U.S. Court ot Appeals tor the Sixth Circuit's stay of that rule. 2) Propose a new definition of Waters of the U.S. that would replace the 2015 CWR that reflects the principles outlined by Justice Scalia (Rapanos plurality opinion). The LGAC consists of 36 local, state and tribal government elected and appointed officials representing cities, parishes, counties, municipalities, and other local political jurisdictions. Local officials are knowiedgeable and provide unique perspectives on issues relating to a revised ruie. Further, the LGAC has potentiai to engage other knowledgeabie 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 rule. This advice and recommendations come from an `on the ground' local government perspective which will assist the agency in providing the best means to communicate a revised ruie with local officials. 1 ! https://www.ivhitehouse.gov/the pres-offic8/2017/02/28/presidential-exeuctive-order-restonng-rule-law-federaHsm- and-economic 2Rapanos v. United States, 547 U.S. 715 (2006) 126 Supreme Court 2208; 185 !.. Ed. 2d 159 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00069204-00001 LGAC Charge: The LGAC will develop recommendations for the EPA to consider in developing approaches to a revised rule defining "waters of the U.S." that ensures that the nation's waters are kept free from pollution while at the same time promoting economic growth and minimizing regulatory uncertainty. The following are specific charge questions and issues for the LGAC to consider: Charge Questions 1) How would you like to see the concepts of 'relatively permanent' 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 of in developing the step 2 proposed rule? 2) What opportunities and challenges exist for your locality with relying on Justice Scalia's opinion? 3) Are there other approaches to defining "waters of the U.S." that you would like the agencies to consider to providing clarity and regulatory certainty? 4) The agencies' economic analysis for step 2 intends to review programs under CWA 303, 311, 401, 402 and 404. Are there any other programs specific to your locality that could be affected but would not be captured in such an economic analysis? 5) What additional information can you provide from a local government perspective that EPA should be aware of? 6) Are there other issues the agencies should consider which would help ease the regulatory burden for implementation of WOTUS for state, local and tribal government? 7) What should the agencies consider in communicating the final rule to state, local and tribal governments to help them fully understand these regulatory changes and implementing them efficiently and most cost-effectively? 8) The Workgroup will also develop recommendations on how the EPA can better work with local governments and engage local governments on issues such as: What 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 implementation, in agricultural and rural small communities? Are there other considerations such as ditch maintenance, stormwater management or green infrastructure?2 2 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00069204-00002 4. 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'Swebsite for LGAC. 5, Preliminary Tirneline/Scliecluie April 26, 2017 - Executive Committee meets to discuss and approve the LGAC's Charge (Protecting America's Waters Workgroup) and develops a work plan with timeline. May 3TMLGAC's Protecting America's Waters Workgroup meets to discuss charge (via teleconference). May 18- LGAC's Protecting America's Waters Workgroup meets with National Intergovernmental organizations to discuss charge (via teleconference), June 7 - LGAC's Protecting America's Waters Workgroup meets to discuss charge (via teleconference). June 29, 2017-The LGAC meets in a public meeting (via teleconference) to review recommendations on rescission of the 2015 CWR and revising the CWR, (Deliverable: Letter of Recommendation) 3 Sierra Club v. EPA 18cv3472 NDCA Tier 10 ED 002061 00069204-00003