redefining waters of the u.s. - steven g. jones, 09.10.14
TRANSCRIPT
Redefining Waters of
the U.S.IMA-NA Annual MeetingJackson Lake Lodge
September 10, 2014
Steven G. Jones801.799.5828; 206.356.3360
Important Information
This presentation is similar to any other seminar designed toprovide general information on pertinent legal topics. Thestatements made and any materials distributed as part of thispresentation are provided for educational purposes only. They donot constitute legal advice nor do they necessarily reflect theviews of Holland & Hart LLP or any of its attorneys other than thespeakers. This presentation is not intended to create an attorney-client relationship between you and Holland & Hart LLP. If youhave specific questions as to the application of the law to youractivities, you should seek the advice of your legal counsel.
All Presentations and Other Materials © Holland & Hart LLP 2014
Factual Background
• On March 25, 2014, EPA and the Corps of Engineers
issued a proposed rule defining “waters of the United
States” under the Clean Water Act (CWA)
• The rule was published
in the Federal Register on
April 21, 2014
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Legal Background
• The proposed rule will apply to all CWA programs:
– NPDES program (Section 402)
– Dredge and fill permitting programs (Section 404)
– Spill prevention program (Section 311); and
– State certification processes (Section 401)
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Legal Background (cont’d)
• The proposed rule significantly increases EPA’s and
the Corps’ jurisdiction under the CWA
• If adopted as proposed, the rule will impact most
industries and municipalities – in fact, everyone
owning or using lands where water is present
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Comment Deadline
• The deadline for comments has been extended
from July 21, 2014 (90 days from publication) to
October 20, 2014
• It is likely that the comment process will be very
important in shaping the final rule and subsequent
litigation
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The Existing Law
• United States v. Riverside Bayview Homes(1985)– Unanimous S. Ct. extends CWA jurisdiction to
navigable waters
• Solid Waste Agency of Northern Cook County
(SWANCC) v. Corps of Engineers (2001)– 5-4 S. Ct. holds that jurisdiction does not extend to
isolated wetlands, requiring a “significant nexus”
navigable waters
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The Existing Law (cont’d)
• Rapanos v. United States (2006)
– 4 vote majority (Scalia) requires flowing or standing water for CWA jurisdiction
– This excludes many areas that dry, but which meet the definition of wetlands
– Deciding 5th vote came from Justice Kennedy, who required a nexus” between waterways and wetlands for CWA jurisdiction
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EPA’s Response(s)
• The S. Ct. has repeatedly urged EPA and the
Corps to initiate formal rulemaking
• EPA issued guidance in 2003, 2007-08 and in
2011 (draft)
• In 2013, the 2011 guidance was withdrawn and
the current rulemaking initiated
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The Newly Proposed Rule
• What is the definition of a “water of the U.S.”?
– Tributaries?
– Adjacent waters?
– Other waters?
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If it’s Wet, it’s a WOTUS
• Per se jurisdictional
– All traditionally navigable and interstate waters
– All impoundments of such waters
– All tributaries of such waters
– All adjacent waters, including wetlands and tributaries
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Wet = WOTUS (cont’d)
• Case by case review
– All other waters
– Other waters if “alone or in
combination with similarly
situated waters” there is a
“significant nexus” to
traditionally navigable
waters
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What is Excluded?
• EPA claims that the proposed rule is narrower than existing regulations
– Tributary = any feature with bed, bank and ordinary high water mark that “contributes flow.”
– Quantity, frequency and duration don’t matter; intermittent streams fall within the definition.
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What is a “Significant Nexus?”
• The rule does not define “nexus”
– Waters fall within the term if they “significantly affect the
chemical, physical or biological integrity of navigable or
interstate water”
– “Significant” means “more than speculative or
insubstantial”
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Interstate and Navigable
Waters
• By referencing “interstate” waters in addition to navigable
waters, non-navigable waters could form a basis for CWA
jurisdiction
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Looking Ahead
• Compliance impacts
– Section 404 permits
– Stormwater permits
– Section 311 permits
– State water quality
certifications
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Looking Ahead (cont’d)
• Issues likely to generate litigation
– intermittent and ephemeral
tributaries
– adjacency
– what are “other waters”
– what are “similarly situated waters”
– what constitutes a “significant
nexus”
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Looking Ahead (cont’d)
• Costs and risks of the new rule
– delays in case-by-case jurisdictional determinations
– potential for jurisdiction to be determined by citizens suit
– potential facial and as-applied challenges
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