
Daniel T. McKillop
Partner
201-896-7115 dmckillop@sh-law.comFirm Insights
Author: Daniel T. McKillop
Date: March 6, 2020
Partner
201-896-7115 dmckillop@sh-law.comOn January 23, 2020, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) finalized the Navigable Waters Protection Rule. The controversial rule redefines “waters of the United States” and narrows federal regulatory authority under the Clean Water Act (CWA).
“EPA and the Army are providing much needed regulatory certainty and predictability for American farmers, landowners and businesses to support the economy and accelerate critical infrastructure projects,” EPA Administrator Andrew Wheeler said in a press statement. “After decades of landowners relying on expensive attorneys to determine what water on their land may or may not fall under federal regulations, our new Navigable Waters Protection Rule strikes the proper balance between Washington and the states in managing land and water resources while protecting our nation’s navigable waters, and it does so within the authority Congress provided.”
Under the Clean Water Act (CWA), a permit must be obtained prior to the discharge of any pollutants into “navigable waters.” The CWA defines the term “navigable waters” as “waters of the United States, including the territorial seas.” As discussed in greater detail in prior articles, the definition of “waters of the United States” (WOTUS) has been the subject of intense debate for the past several years.
In 2015, the Obama Administration promulgated the “Clean Water Rule: Definition of ‘Waters of the United States,’” which broadly defined the scope of jurisdictional waters as whether a water or wetland possesses a “significant nexus” to waters that are or were navigable. The 2015 WOTUS Rule prompted significant litigation, which prevented it from being implemented in more than half of the country. Upon taking office, President Trump made it a priority to repeal the Obama-era rule and create a more restrictive WOTUS definition. The EPA and USACE subsequently conducted a two-step rulemaking process that rescinded the 2015 rule and proposed a new definition of WOTUS.
Under the final Navigable Waters Protection Rule, four categories of waters are federally regulated:
The final rule also details 12 categories of exclusions. The list includes ephemeral features that contain water only during or in response to rainfall; groundwater; prior converted cropland; waste treatment systems; and stormwater control features excavated or constructed in upland to convey, treat, infiltrate, or store stormwater run-off.
The EPA and USACE made several changes in response to public comments on its proposed rule. Notably, ditches and impoundments are no longer separate categories of jurisdictional waters. Under the final rule, perennial and intermittent tributaries upstream of ephemeral reaches are jurisdictional when they have a surface water connection to downstream jurisdictional water in a typical year.
The final rule expands and clarifies the factors that determine whether wetlands are considered adjacent and thereby subject to the CWA. Under the proposal, wetlands physically separated by a natural or artificial barrier from another jurisdictional water would not have been subject to Clean Water Act jurisdiction. Many of these wetlands will be covered by the final rule.
While the Navigable Waters Protection Rule aims to provide regulatory certainty, environmental groups have already announced that they plan to challenge the rule. “So much for the ‘crystal clear’ water President Trump promised,” said Natural Resources Defense Council President and CEO Gina McCarthy, who previously served as EPA Administrator under President Obama. “This effort neglects established science and poses substantial new risks to people’s health and the environment. We will do all we can to fight this attack on clean water. We will not let it stand.”
If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, or the Scarinci Hollenbeck attorney with whom you work, at 201-806-3364.
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Business partnerships, much like marriages, function exceptionally well when partners are aligned but can become challenging when disagreements arise. Partnership disputes often stem from conflicts over business strategy, financial management, and unclear role definitions among partners. Understanding Business Partnership Conflicts Partnership conflicts place significant stress on businesses, making proactive measures essential. Partnerships should establish detailed […]
Author: Christopher D. Warren
*** The original article was featured on Bloomberg Tax, April 28, 2025 — As a tax attorney who spends much of my time helping people and companies who have large, unresolved issues with the IRS or one or more state tax departments, it often occurs to me that the best service that I can provide […]
Author: Scott H. Novak
On January 28, 2025, the Trump Administration terminated Gwynne Wilcox from her position as a Member of the National Labor Relations Board (NLRB or the Board). Gwynne Wilcox, a union side lawyer for Levy Ratner, was confirmed to the Board for an original term in 2021 and confirmed again for a successive five-year term expiring […]
Author: Matthew F. Mimnaugh
Breach of contract disputes are the most common type of business litigation. Therefore, nearly all New York and New Jersey businesses will likely have to deal with a contract dispute at least once. Understanding when to file a breach of contract lawsuit and how long you have to sue for breach of contract is essential […]
Author: Brittany P. Tarabour
Closing your business can be a difficult and challenging task. For corporations, the process includes formal approval of the dissolution, winding up operations, resolving tax liabilities, and filing all required paperwork. Whether you need to understand how to dissolve a corporation in New York or New Jersey, it’s imperative to take all of the proper […]
Author: Christopher D. Warren
Commercial leases can take a variety of forms, which is often confusing for both landlords and tenants. Understanding the different types, especially the gross lease structure, is important when selecting the lease that best suits your needs. One key distinction between lease types is how rent is calculated and paid. This article addresses the two […]
Author: Robert L. Baker, Jr.
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.
Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.
Let`s get in touch!
Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!