The jurisdictional reach of the federal 1972 Clean Water Act, which hinges on the definition of “navigable waters” or the “waters of the United States,” has been the subject of hot debate, consternation and interpretation – with plenty of litigation, regulation, agency interpretative guidance, inter-agency memorandum of agreements, more litigation, new regulations, supplemental agency guidance and memoranda, even injunctions, and so on – for decades.

The last major action in this saga was the Obama administration’s 2015 Clean Water Rule, which broadened the Act’s jurisdiction to water bodies not previously regulated, such as smaller streams and tributaries, dry washes or intermittent streams, and certain ditches or gravel pits.  Farmers, especially in the West (where a large majority of surface water flows intermittently), developers, and the mining industry were most affected by the expansion.

One of President Trump’s first actions in office was a February 2017 executive order directing the United States Environmental Protection Agency and the Army Corps of Engineers (the two agencies share regulatory authority under the Act) to rescind and replace the Obama Rule.  Today, the two agencies released the proposed replacement rule.  As expected, it proposes a significantly more limited definition of “waters of the United States.”

Early estimates are saying that millions of acres of wetlands and thousands of miles of streams will no longer be subject to federal regulation, but there is a long road ahead before the rule becomes law.  First, the proposed rule is subject to a 60 day public comment period.  Second is the litigation, which is a practically guaranteed – environmental groups have made their opposition clear.  And the saga continues…



On September 27, 2010, New Jersey Department of Environmental Protection Commissioner Bob Martin announced the opening of the DEP Office of Dispute Resolution. Commissioner Martin stated that “The Office of Dispute Resolution will play a key role in achieving our goal of breaking down the barriers that have often existed between the DEP and businesses, individuals and local governments.” But the Commissioner warned that “In finding common ground, however, we will not compromise protection of the environment.”

The types of issues which will be appropriate for the dispute resolution process would include, for instance, (a) disputes with the site remediation staff regarding the requirements associated with site cleanups, (b) disputes with the land use permitting staff regarding the issuance of environmental land use permits such as wetland permits and (c) disputes with DEP’s enforcement staff regarding the reasonable amount of penalties, if any, for alleged violations of environmental law.

The alternative dispute resolution process, to be facilitated by the Office of Dispute Resolution, is designed to reduce litigation costs, save time and allow the parties to participate directly in reaching a mutually agreeable resolution of disputes with the DEP. The Office of Dispute Resolution has identified its goals as follows: “define and clarify issues disputed; facilitate communication between regulated parties and DEP staff; encourage collaborative problem-solving; explore options for resolution to the issues; and promote and document a mutually satisfactory agreement.” By participating in the alternative dispute resolution process, parties should be in a position to negotiate with the DEP and reach a resolution of open issues through an expedited process.