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
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.
Background and basic content of the proposed rule
- Riverside Bayview, SWANCC, Rapanos—facts, holdings, rationale
- EPA Guidance—2003, 2007-08, 2011(draft)
- Broad outline of 2014 proposed rule
In-depth look at the 2014 proposed rule and its impacts
- Tributaries, adjacent waters, other waters
- Compliance impacts—Sect. 404, stormwater, Sect. 311, WQS
Looking ahead—issues for EPA and the courts
- Examine the major issues in depth—intermittent and ephemeral tributaries; adjacency; “other waters”; “similarly situated”; “in combination with”; “significant nexus”
- Costs and risks—e.g., delays in case-specific agency jurisdictional determinations; risk of jurisdictional determinations by citizen suit
- Judicial review—crystal ball, the facial and as-applied challenges we all expect
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?
James T. Banks
Hogan Lovells US
Mr. Banks’ experience includes design/implementation of environmental compliance systems and audits;... | Read More
Mr. Banks’ experience includes design/implementation of environmental compliance systems and audits; interstate water resources litigation; defense of Clean Water Act enforcement cases; National Environmental Policy Act (NEPA) counseling and litigation; wetlands permitting; CERCLA cost recovery, contribution and reimbursement cases; National Pollutant Discharge Elimination System (NPDES) permitting; and pretreatment standards issues. He has managed large-scale environmental due diligence efforts in connection with various transactions. He also has been involved in Congressional reauthorization of major environmental statutes.Close
Kathryn Kusske Floyd
Ms. Floyd has extensive experience counseling companies regarding controversial hot-button projects that draw... | Read More
Ms. Floyd has extensive experience counseling companies regarding controversial hot-button projects that draw attention from regulatory agencies and outside groups threatening litigation or disruptions. She helps clients shape strategic responses and catalogue a documented record to minimize risk, advance approvals and, when necessary, beat back lawsuits. Many of these engagements arise when clients’ projects face opposition under environmental laws such as the National Environmental Policy Act and the Clean Water Act. She represents companies from various industries in matters pertaining to regulatory and environmental affairs and litigation aspects of large infrastructure and development projects.Close
Barry M. Hartman
Mr. Hartman represents companies and individuals in criminal and civil investigations, trials, and appeals primarily... | Read More
Mr. Hartman represents companies and individuals in criminal and civil investigations, trials, and appeals primarily involving complex federal regulatory programs, with an emphasis on environmental matters. He previously served as Acting Assistant Attorney General of the Environment Division at the United States Department of Justice where he was responsible for civil and criminal enforcement of federal environmental laws, and defense of regulations, under among other laws, the Clean Water Act. He has prosecuted and defended a number of ‘wetlands’ enforcement cases around the nation, including United States v. Adams Brothers, Municipality of Anchorage v. United States, and United States v. Pozsgai and as an amicus party on behalf of the California Farm Bureau in Deaton v. United States.Close