New EPA Guidance for Clean Water Act Jurisdiction

Best Practices to Obtain Permits for Projects Involving Wetlands

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

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Conducted on Wednesday, April 1, 2009

Course Materials

This seminar will examine the tests put forth in the Supreme Court's Rapanos ruling, the guidance provided by the EPA and the Army Corps of Engineers and discuss best practices for assessing whether the CWA applies to a project and when a determination or challenge to jurisdiction is needed.

Description

The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (ACE) issued final guidance concerning the reach of the Clean Water Act (CWA). The guidance identifies the waters over which the agencies will assert jurisdiction.

The guidance seeks to clarify the agencies’ position after the Supreme Court’s 2006 Rapanos decision, which created confusion about the scope of federal jurisdiction over waterways. However, many think the guidelines' complexity will lead to inconsistent application and further confusion.

To avoid undue delays, increased costs or termination of a project, it is important for those involved in projects involving wetlands and their counsel to determine whether the CWA applies and when a jurisdictional determination or challenge is necessary.

Listen as our authoritative panel of environmental law attorneys examines the new EPA/ACE guidance, reviews Rapanos and its impact, and offers best practices for obtaining permits under the CWA and the EPA/ACE guidance.

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Outline

  1. Rapanos and its impact
    1. Rapanos decision
    2. Lower court interpretation/application of Rapanos
    3. CWA jurisdiction after Rapanos
  2. EPA/Corps guidance
    1. Categories of water bodies
    2. Application
    3. Deviation from Rapanos
    4. Unanswered questions
  3. Best practices for permitting under the CWA

Benefits

The panel will review these and other key questions:

  • Where did Rapanos leave CWA permitting and does the newest EPA/Corps guidance deviate from Rapanos?
  • Is the guidance limited to Section 404 or will it impact jurisdictional determinations in administration of sections 303, 319, or 402?
  • What steps can those involved with a development project take in determining whether a CWA permit is needed?

Faculty

Joel M. Gross
Joel M. Gross
Partner
Arnold & Porter

He advises clients in litigation and non-litigation matters under federal and state environmental laws, with a special...  |  Read More

Patrick W. Dennis
Patrick W. Dennis
Partner
Gibson Dunn & Crutcher

He chairs the firm's Environmental Litigation and Mass Tort Practice. He has practiced exclusively in the environmental...  |  Read More

Courtney, Aaron
Aaron C. Courtney
Of Counsel
Stoel Rives

He represents clients on compliance, permitting and litigation issues under federal and state clean up laws, the Clean...  |  Read More

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