U.S. EPA and the Corps Release Waters of the United States Rule that Closely Adheres to Justice Scalia’s Rapanos Opinion—But Due to California’s New Wetlands Program, Provides Little Relief to the State Regulated Community

March 2020

California Water Law & Policy Reporter, Volume 30, Number 6

On January 23, 2020, the United States Environmental Protection Agency (“USEPA”) and the United States Army Corps of Engineers (“Corps”) (together referred to as “the Agencies”) released a prepublication version of a joint final rule that sets forth a new definition of the Waters of the United States (“Joint Rule”). The Joint Rule attempts to provide long-awaited certainty to an area of the law typically wrought with confusion, through the establishment of new bright line rules, added definitions, and the elimination of the vague “significant nexus” test established by Justice Kennedy’s concurring opinion in Rapanos v. United States, 547 U.S. 715 (2006) (hereafter Rapanos) – a notoriously fractured Supreme Court decision regarding the appropriate limitations of waters subject to the Clean Water Act (“CWA”). The Joint Rule will become effective 60 days after publication in the Federal Register.

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