(1) Waters of the United States––Final Rule September 12, 2019––Step One
On September 12, 2019, the U.S. Environmental Protection Agency (EPA) and Department of the Army released the final rule repealing the 2015 Clean Water Rule. Also known as “Step One” of a two-part process, the Final Rule recodifies the regulatory text that existed prior to the 2015 Rule and reinstates the applicability of relevant agency guidance documents as well as Supreme Court decisions interpreting those regulations. The Final Rule cited four primary reasons for the repeal. First, the 2015 Rule exceeded the agencies’ authority in the Clean Water Act and the “significant nexus” test articulated in Rapanos. Second, the agencies failed to give due weight to the stated policy of the Clean Water Act (CWA) in section 101(b). Third, the 2015 Rule went too far in terms of exerting federal jurisdiction over traditional state land-use planning authority. Finally, the 2015 Rule’s “distance-based limitations suffered from certain procedural errors and a lack of adequate record support.” The Final Rule becomes effective 60 days after publication in the Federal Register.