The U.S. Environmental Protection Agency (EPA) is Moving Forward with its Rewrite of the Clean Water Rule
The U.S. Environmental Protection Agency (EPA) is moving forward with its rewrite of the Clean Water Rule. The agency recently sent its proposal to redefine “Waters of the United States” (WOTUS) to the White House Office of Management and Budget for review.
The Clean Water Act (CWA) prohibits the discharge of any pollutants into “navigable waters” without first obtaining a permit. The CWA defines the term “navigable waters” as “waters of the United States, including the territorial seas.”
In 2015, the Obama Administration promulgated the “Clean Water Rule: Definition of ‘Waters of the United States,’” (WOTUS Rule or Clean Water Rule) to further define the “waters of the United States.” The rule adopted the approach of Justice Anthony Kennedy’s concurring opinion in Rapanos v. United States, defining the scope of jurisdictional waters as whether a water or wetland possesses a “‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.”
The broad standard set forth in the 2015 WOTUS Rule prompted significant litigation. In total, 31 states, the U.S. Chamber of Commerce, and several other interested parties challenged the scope and legal authority of the WOTUS Rule. In 2016, the U.S. Court of Appeals for the Sixth Circuit issued a stay halting the enforcement of the WOTUS Rule. However, its decision was overturned in January, when the U.S. Supreme Court issued its much-anticipated decision in National Association of Manufacturers v. Department of Defense.
The Supreme Court unanimously held that challenges to the Clean Water Rule must be filed in federal district courts rather than federal circuit courts of appeal. As a result, many of the lawsuits waged against the rule were forced to start from scratch. They have, however, still been successful in securing injunctions against its enforcement. On June 8, 2018, the U.S. District Court for the Southern District of Georgia blocked the WOTUS rule in 11 states, bringing the total to 24 states. According to the court, the WOTUS rule violated federal law, running afoul of both the Clean Water Act and the Administrative Procedure Act.
Trump Administration Proposing New WOTUS Rule
Last June, the EPA and Army Corps of Engineers proposed a new rule to rescind the definition of “waters of the United States” in the Code of Federal Regulations and officially recodify the pre-WOTUS Rule regulations and guidance. The rule served as a stop-gap measure while the EPA drafted a new version of the Clean Water Rule.
The EPA’s new rule, which should be published soon, is likely to revolve around a narrow jurisdictional interpretation of the CWA and will likely exclude most headwater systems and wetlands areas. In 2017 Executive Order, the Trump Administration called for interpreting the term “navigable waters” in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos. In the Supreme Court’s split decision, Justice Scalia maintained that “the phrase ‘the waters of the United States’ includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] . . . oceans, rivers, [and] lakes.’. . . . The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. . .”
In announcing that the agency had taken the next step in redefining WOTUS, EPA Administrator Scott Pruitt highlighted that the new rule would be more business-friendly. “Farmers, ranchers, landowners, and other stakeholders are counting on EPA to listen to their input when it comes to defining ‘waters of the United States,’” Pruitt said in a press statement. “Today, we are taking an important step toward issuing a new WOTUS definition and answering President Trump’s call to ensure that our waters are kept free from pollution, while promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the federal government and the states under the statutory framework of the Clean Water Act.”
The EPA’s rewrite of the Clean Water Rule will also undoubtedly face lawsuits from environmental groups. Because suits must be filed in the federal district courts, they will likely result in inconsistent rulings and protracted legal battles. In the end, the Supreme Court could have the final word.
Given that the Trump Administration’s definition of “waters of the United States” may significantly impact a wide range of legal issues related to the CWA, including permitting, regulatory compliance and potential liability matters, we encourage members of the regulated community to stay informed regarding WOTUS Rule developments, as well as participate in the forthcoming the notice and comment process.
If you have any questions, please contact us
If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, at 201-806-3364.
Does Your Homeowners Insurance Provide Adequate Coverage?
Your home is likely your greatest asset, which is why it is so important to adequately protect it. Homeowners insurance protects you from the financial costs of unforeseen losses, such as theft, fire, and natural disasters, by helping you rebuild and replace possessions that were lost While the definition of “adequate” coverage depends upon a […]
Understanding the Importance of a Non-Contingent Offer
Making a non-contingent offer can dramatically increase your chances of securing a real estate transaction, particularly in competitive markets like New York City. However, buyers should understand that waiving contingencies, including those related to financing, or appraisals, also comes with significant risks. Determining your best strategy requires careful analysis of the property, the market, and […]
Fred D. Zemel Appointed Chair of Strategic Planning at Scarinci & Hollenbeck, LLC
Business Transactional Attorney Zemel to Spearhead Strategic Initiatives for Continued Growth and Innovation Little Falls, NJ – February 21, 2025 – Scarinci & Hollenbeck, LLC is pleased to announce that Partner Fred D. Zemel has been named Chair of the firm’s Strategic Planning Committee. In this role, Mr. Zemel will lead the committee in identifying, […]
Novation Agreement Process: Step-by-Step Guide for Businesses
Big changes sometimes occur during the life cycle of a contract. Cancelling a contract outright can be bad for your reputation and your bottom line. Businesses need to know how to best address a change in circumstances, while also protecting their legal rights. One option is to transfer the “benefits and the burdens” of a […]
What Is a Trade Secret? Key Elements and Legal Protections Explained
What is a trade secret and why you you protect them? Technology has made trade secret theft even easier and more prevalent. In fact, businesses lose billions of dollars every year due to trade secret theft committed by employees, competitors, and even foreign governments. But what is a trade secret? And how do you protect […]
What Is Title Insurance? Safeguarding Against Title Defects
If you are considering the purchase of a property, you may wonder — what is title insurance, do I need it, and why do I need it? Even seasoned property owners may question if the added expense and extra paperwork is really necessary, especially considering that people and entities insured by title insurance make fewer […]
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.
EPA Moves Forward with Rewrite of the Clean Water Rule
Author: Daniel T. McKillop
The U.S. Environmental Protection Agency (EPA) is Moving Forward with its Rewrite of the Clean Water Rule
The U.S. Environmental Protection Agency (EPA) is moving forward with its rewrite of the Clean Water Rule. The agency recently sent its proposal to redefine “Waters of the United States” (WOTUS) to the White House Office of Management and Budget for review.
The Clean Water Act (CWA) prohibits the discharge of any pollutants into “navigable waters” without first obtaining a permit. The CWA defines the term “navigable waters” as “waters of the United States, including the territorial seas.”
In 2015, the Obama Administration promulgated the “Clean Water Rule: Definition of ‘Waters of the United States,’” (WOTUS Rule or Clean Water Rule) to further define the “waters of the United States.” The rule adopted the approach of Justice Anthony Kennedy’s concurring opinion in Rapanos v. United States, defining the scope of jurisdictional waters as whether a water or wetland possesses a “‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.”
The broad standard set forth in the 2015 WOTUS Rule prompted significant litigation. In total, 31 states, the U.S. Chamber of Commerce, and several other interested parties challenged the scope and legal authority of the WOTUS Rule. In 2016, the U.S. Court of Appeals for the Sixth Circuit issued a stay halting the enforcement of the WOTUS Rule. However, its decision was overturned in January, when the U.S. Supreme Court issued its much-anticipated decision in National Association of Manufacturers v. Department of Defense.
The Supreme Court unanimously held that challenges to the Clean Water Rule must be filed in federal district courts rather than federal circuit courts of appeal. As a result, many of the lawsuits waged against the rule were forced to start from scratch. They have, however, still been successful in securing injunctions against its enforcement. On June 8, 2018, the U.S. District Court for the Southern District of Georgia blocked the WOTUS rule in 11 states, bringing the total to 24 states. According to the court, the WOTUS rule violated federal law, running afoul of both the Clean Water Act and the Administrative Procedure Act.
Trump Administration Proposing New WOTUS Rule
Last June, the EPA and Army Corps of Engineers proposed a new rule to rescind the definition of “waters of the United States” in the Code of Federal Regulations and officially recodify the pre-WOTUS Rule regulations and guidance. The rule served as a stop-gap measure while the EPA drafted a new version of the Clean Water Rule.
The EPA’s new rule, which should be published soon, is likely to revolve around a narrow jurisdictional interpretation of the CWA and will likely exclude most headwater systems and wetlands areas. In 2017 Executive Order, the Trump Administration called for interpreting the term “navigable waters” in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos. In the Supreme Court’s split decision, Justice Scalia maintained that “the phrase ‘the waters of the United States’ includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] . . . oceans, rivers, [and] lakes.’. . . . The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. . .”
In announcing that the agency had taken the next step in redefining WOTUS, EPA Administrator Scott Pruitt highlighted that the new rule would be more business-friendly. “Farmers, ranchers, landowners, and other stakeholders are counting on EPA to listen to their input when it comes to defining ‘waters of the United States,’” Pruitt said in a press statement. “Today, we are taking an important step toward issuing a new WOTUS definition and answering President Trump’s call to ensure that our waters are kept free from pollution, while promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the federal government and the states under the statutory framework of the Clean Water Act.”
The EPA’s rewrite of the Clean Water Rule will also undoubtedly face lawsuits from environmental groups. Because suits must be filed in the federal district courts, they will likely result in inconsistent rulings and protracted legal battles. In the end, the Supreme Court could have the final word.
Given that the Trump Administration’s definition of “waters of the United States” may significantly impact a wide range of legal issues related to the CWA, including permitting, regulatory compliance and potential liability matters, we encourage members of the regulated community to stay informed regarding WOTUS Rule developments, as well as participate in the forthcoming the notice and comment process.
If you have any questions, please contact us
If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, at 201-806-3364.
Let`s get in touch!
Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!
