EPA's New Navigable Waters Protection Rule: Taking Advantage of Reduced Federal Role

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

Conducted on Wednesday, May 6, 2020

Recorded event now available

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Program Materials

This CLE webinar will explore the full ramifications of EPA's just adopted Navigable Waters Protection Rule (NWPR). The NWPR represents a new, narrower approach to the federal role in clean water efforts. The webinar will help counsel advise their clients on the implications of these changes and how to respond to them.

Description

The Clean Water Act protects "navigable waters," which the Act defines as "waters of the United States" (WOTUS). Among other things, the Act prohibits discharges of pollutants, including fill material, to a WOTUS without a permit from either EPA or the Army Corps of Engineers. EPA’s and the Corps’ newly announced Navigable Waters Protection Rule (NWPR) replaces the prior broader regulatory definition of WOTUS.

The new rule keeps in place federal protections for traditional navigable waters, as well as larger rivers and streams that flow into them and their adjacent wetlands. However, the new rule excludes other water features from Clean Water Act protection, including ephemeral streams that only flow after rainstorms and wetlands and other waters that lack a direct surface hydrological connection to other jurisdictional waters.

The meaning of these changes depends on the perspective of the party. Many in affected industries - including those involved in project development, construction, land use, or agriculture - believe the changes are an overdue removal of federal impediments to business. Those against the change fear that hydrologically and ecologically important wetlands and ephemeral waters will lose important federal protections. Opinions are often particularly strong among those in the dry and arid west, which has more seasonal and rainfall-driven water availability.

Listen as this panel of environmental law leaders examines these changes step-by-step, and discusses their impact in law and business.

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Outline

  1. Contrasting approaches
    1. Waters of the U.S.
    2. Navigable waters
  2. Regulatory scheme applicable to particular waters
    1. Territorial seas
    2. Waters used in commerce
    3. Tributaries
    4. Ditches
    5. Lakes and ponds
    6. Impoundments
    7. Wetlands
  3. Going forward steps
    1. Industry-specific planning
    2. Resolving uncertain legal issues

Benefits

The panel will review key issues such as:

  • What are the differences between the old and new regulations?
  • What is the timetable for implementation and inevitable litigation?
  • What industries are most affected by the changes?
  • What opportunities and challenges are presented by the changes?
  • Will the new rule hold up in court?

Faculty

Campbell, Michael
Michael R. Campbell
Partner
Stoel Rives

Mr. Campbell practices in the firm’s Environmental, Land Use and Natural Resources Group. His practice emphasizes...  |  Read More

Macfarlan, Tad
Tad J. Macfarlan
Partner
K&L Gates

Mr. Macfarlan advises the firm’s energy, industrial, utility and commercial sector clients on compliance with...  |  Read More

Smith, Freedom
Freedom S.N. Smith
Partner
Ice Miller

Ms. Smith concentrates her practice in the areas of environmental and toxic tort litigation, environmental...  |  Read More

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