Scarinci Hollenbeck, LLC, LLCScarinci Hollenbeck, LLC, LLC

Firm Insights

EPA and Army Corps Finalize Navigable Waters Protection Rule

Author: Daniel T. McKillop

Date: March 6, 2020

Key Contacts

Back

On January 23, 2020, the EPA and the U.S. Army Corps of Engineers finalized the Navigable Waters Protection Rule

On 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 Army Corps Finalize Navigable Waters Protection Rule

“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.”

Legal Uncertainty Surrounding WOTUS

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 The EPA and USACE subsequently conducted a two-step rulemaking process that rescinded the 2015 rule and proposed a new definition of WOTUS.

Final Navigable Waters Protection Rule

Under the final Navigable Waters Protection Rule, four categories of waters are federally regulated:

  • Territorial seas and traditional navigable waters: Territorial seas and traditional navigable waters include large rivers and lakes (i.e., Mississippi River and the Great Lakes) and tidally-influenced waterbodies used in interstate or foreign commerce. 
  • Perennial and intermittent tributaries to those waters: Tributaries include perennial and intermittent rivers and streams that contribute surface flow to traditional navigable waters in a typical year. To fall under the CWA, tributaries must be perennial or intermittent. Tributaries can connect to a traditional navigable water or territorial sea in a typical year either directly or through other “waters of the United States,” through channelized non-jurisdictional surface waters, through artificial features (including culverts and spillways), or through natural features (including debris piles and boulder fields). Ditches qualify as tributaries only where they satisfy the flow conditions of the perennial and intermittent tributary definition and either were constructed in or relocate a tributary or were constructed in an adjacent wetland and contribute perennial or intermittent flow to a traditional navigable water in a typical year.
  • Certain lakes, ponds, and impoundments: Lakes, ponds, and impoundments of jurisdictional waters are jurisdictional where they contribute surface water flow to a traditional navigable water or territorial sea in a typical year either directly or through other “waters of the United States,” through channelized non-jurisdictional surface waters, through artificial features (including culverts and spillways), or through natural features (including debris piles and boulder fields). Lakes, ponds, and impoundments of jurisdictional waters are also jurisdictional where they are flooded by a “water of the United States” in a typical year, such as certain oxbow lakes that lie along the Mississippi River.
  • Wetlands adjacent to jurisdictional waters: Wetlands that physically touch other jurisdictional waters are “adjacent wetlands.” Wetlands separated from a “water of the United States” by only a natural berm, bank or dune are also “adjacent,” as are wetlands inundated by flooding from a “water of the United States” in a typical year. Wetlands that are physically separated from a jurisdictional water by an artificial dike, barrier, or similar artificial structure are “adjacent” so long as that structure allows for a direct hydrologic surface connection between the wetlands and the jurisdictional water in a typical year, such as through a culvert, flood or tide gate, pump, or similar artificial feature. An adjacent wetland is jurisdictional in its entirety when a road or similar artificial structure divides the wetland, as long as the structure allows for a direct hydrologic surface connection through or over that structure in a typical year.

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.

Changes Reflected in Final Rule

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.

What’s Next?

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 questions, please contact us

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.

Scarinci Hollenbeck, LLC, LLC

Related Posts

See all
How to Dissolve a Corporation in New Jersey: A Step-by-Step Guide post image

How to Dissolve a Corporation in New Jersey: A Step-by-Step Guide

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

Link to post with title - "How to Dissolve a Corporation in New Jersey: A Step-by-Step Guide"
Gross Lease vs. Net Lease: Understanding the Key Differences post image

Gross Lease vs. Net Lease: Understanding the Key Differences

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.

Link to post with title - "Gross Lease vs. Net Lease: Understanding the Key Differences"
What to Do If You Are Impacted by a Retailer Bankruptcy Part 2 post image

What to Do If You Are Impacted by a Retailer Bankruptcy Part 2

Over the past year, brick-and-mortar stores have closed their doors at a record pace. Fluctuating consumer preferences, the rise of online shopping platforms, and ongoing economic uncertainty continue to put pressure on the retail industry. When a retailer seeks bankruptcy protection, a myriad of other businesses are often impacted. Whether you are a supplier, customer, […]

Author: Brian D. Spector

Link to post with title - "What to Do If You Are Impacted by a Retailer Bankruptcy Part 2"
The Current Administration's Proposals for the Financial Services and Banking Industries Will Affect Your Business post image

The Current Administration's Proposals for the Financial Services and Banking Industries Will Affect Your Business

Since his inauguration two months ago, Donald Trump’s administration and the Congress it controls have indicated important upcoming policy changes. These changes will impact financial services policies and priorities. The changes will particularly affect cryptocurrency, as well as banking rules and regulations. Key Regulatory Changes in Cryptocurrency For example, in the burgeoning cryptocurrency business environment, […]

Author: Dan Brecher

Link to post with title - "The Current Administration's Proposals for the Financial Services and Banking Industries Will Affect Your Business"
Tips for Commercial Landlords Impacted by Wave of Retailer Bankruptcies Part 1 post image

Tips for Commercial Landlords Impacted by Wave of Retailer Bankruptcies Part 1

The retail sector has experienced a wave of bankruptcy filings over the last year. Brick-and-mortar businesses in financial distress include big-name brands like Big Lots, Party City, The Container Store, and Vitamin Shoppe. When large retailers seek bankruptcy protection, they are not the only businesses impacted. Landlords can be particularly hard hit. While commercial landlords […]

Author: Brian D. Spector

Link to post with title - "Tips for Commercial Landlords Impacted by Wave of Retailer Bankruptcies Part 1"

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Sign up to get the latest from our attorneys!

Explore What Matters Most to You.

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!

* The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!

Please select a category(s) below: