EPA's Expanded "Waters of the U.S." Definition: Navigating the Unprecedented Reach and Scope of New Rule

Recording of a 90-minute CLE webinar with Q&A


Conducted on Wednesday, May 28, 2014

Recorded event now available

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Program Materials

This CLE webinar will provide environmental counsel with an in depth review of the EPA's newly proposed revision that widely expands the reach of its rule defining "waters of the United States." The panel will examine the huge number of entities, businesses and local governments that will be impacted and how—and the expected legal challenges that the rule change will precipitate. The panel will outline and analyze practical next steps for counsel in moving forward with transactions involving waters under and not yet under EPA control.

Description

On Mar. 25, 2014, the EPA and Army Corps of Engineers released their proposed rule fundamentally redefining the “waters of the United States” under the Clean Water Act. The proposed rule will apply to all CWA programs, including the Section402 NPDES and Section 404 dredge and fill permitting programs, the Section 311 spill prevention program, and the Section 401 state certification process. EPA’s proposed definitions would enable the Agency and the Corps to assert significantly increased CWA jurisdiction aimed at bringing ponds, ditches and other “occasionally” wet areas under federal regulation where the connection to a “water of the United States” is not readily apparent.

The rule, if adopted as proposed, will impact most industries, businesses, municipalities and everyone owning or using lands where water is present. Counsel to affected entities and industries must understand the potential impact of the proposed rule and be prepared to guide clients on what to do now. Unfortunately, the proposed rule does not deliver the clarity needed by the regulated community for future compliance, thus creating a lot of uncertainty and risk ahead.

Comments on the proposed rule currently are due July 21, 2014, and the public comment process will be very important in shaping the final rule and the litigation to follow.

Listen as our authoritative panel examines the scope of the proposed rule, analyzes who will be impacted—and how, and addresses the likelihood of the rule being adopted and expected challenges. The panel will also address what counsel needs to do now regarding transactions that could be impacted if/when the rule is adopted.

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Outline

  1. Background and basic content of the proposed rule
    1. Riverside Bayview, SWANCC, Rapanos—facts, holdings, rationale
    2. EPA Guidance—2003, 2007-08, 2011(draft)
    3. Broad outline of 2014 proposed rule
  2. In-depth look at the 2014 proposed rule and its impacts
    1. Tributaries, adjacent waters, other waters
    2. Exclusions
    3. Compliance impacts—Sect. 404, stormwater, Sect. 311, WQS
  3. Looking ahead—issues for EPA and the courts
    1. Examine the major issues in depth—intermittent and ephemeral tributaries; adjacency; “other waters”; “similarly situated”; “in combination with”; “significant nexus”
    2. Costs and risks—e.g., delays in case-specific agency jurisdictional determinations; risk of jurisdictional determinations by citizen suit
    3. Judicial review—crystal ball, the facial and as-applied challenges we all expect

Benefits

The panel will review these and other key questions:

  • How does the proposed rule define tributaries, adjacent waters and other waters?
  • What does the proposed rule exclude from waters of the U.S?
  • What are the potential compliance impacts under the proposed rule? What issues lie ahead for EPA and for the courts?
  • What are the costs and risks to industry and businesses going forward including delay and uncertainty?
  • What types of lawsuits and challenges can be expected?
  • What can you do to protect your interests now?

Faculty

James T. Banks
James T. Banks

Partner
Hogan Lovells US

Mr. Banks’ experience includes design/implementation of environmental compliance systems and audits;...  |  Read More

Floyd, Kathryn
Kathryn Kusske Floyd

Partner
Venable

Ms. Floyd has extensive experience counseling companies regarding controversial hot-button projects that draw...  |  Read More

Hartman-Barry
Barry M. Hartman

Partner
K&L Gates

Mr. Hartman represents companies and individuals in criminal and civil investigations, trials, and appeals primarily...  |  Read More

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