"Waters of the U.S.": Navigating the EPA Rule, Status of Challenges to the Rule, and Potential Effects of the Rule, Including on Pending Transactions

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


Conducted on Thursday, October 20, 2016

Recorded event now available

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Program Materials

This CLE webinar will provide environmental counsel with a review of the EPA’s final rule that seeks to clarify—and, many assert, substantially expands its definition of “waters of the United States (WOTUS).” The panel will examine the huge number of entities, businesses and local governments that could be impacted—and how—and the legal challenges that have been made. The panel will outline and analyze practical next steps for counsel to take in responding to the rule, including moving forward with transactions pending a final ruling on the legal challenges.

Description

Since its release, the EPA rule that redefines the WOTUS has faced continuing opposition, controversy and a multitude of legal challenges. Opponents sought review in several federal district courts and circuit courts of appeal.

In Feb. 2016, the Sixth Circuit accepted original jurisdiction over what is now the lead case on the WOTUS Rule. The suit alleges the rule’s “distance limitations” aren’t compatible with science and that the final version of the rule is not consistent with the proposed rule. Since that ruling, both the Tenth and Eleventh Circuit Courts of Appeal have declined to revive challenges in their circuits.

Counsel to affected industries must understand not only the potential impact of the final rule but also the potential impact on current transactions due to ongoing legal challenges to the rule.

Listen as the panel provides an overview of the final rule and discusses who might be impacted and how. The panel will also examine the legal challenges to the rule. The panel will further discuss what counsel needs to do regarding transactions that could be impacted by the final rule, analyzing practical next steps for counsel in moving forward with transactions involving waters that may be included within the definition of WOTUS under the rule.

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Outline

  1. Review of the final rule and its impact
    1. Waters of the U.S.
    2. Significant nexus
    3. Exemptions
    4. Expanded jurisdiction
    5. Impact of the final rule
  2. Legal challenges to the rule and what to do in the interim
  3. Practical steps for counsel moving forward with transactions involving waters under EPA controls

Benefits

The panel will review these and other key issues:

  • How does the final rule define tributaries, adjacent waters and other waters?
  • What are the potential effects of the final rule?
  • What are best practices for counsel dealing with WOTUS issues in current transactions?
  • What are the costs and risks to industry and businesses going forward despite the uncertainty of legal challenges?

Faculty

James M. Auslander
James M. Auslander

Principal
Beveridge & Diamond

Mr. Auslander’s practice focuses on environmental, natural resources, and administrative law and...  |  Read More

Michael R. Campbell
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

Daniel J. Deeb
Daniel J. Deeb

Partner
Schiff Hardin

Mr. Deeb represents corporate and municipal clients in civil litigation, including major federal and state enforcement...  |  Read More

Jeff B. Kray
Jeff B. Kray

Partner
Marten Law

Mr. Kray’s practice focuses on water quality, water resources, and complex environmental litigation, including...  |  Read More

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