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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

  • work Practice Area

    Environmental

Date & Time
  • event Date

    Tuesday, April 4, 2023

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00
CLE
ALL

This CLE webinar will brief environmental counsel on the recent U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) final rule updating and redefining the "waters of the United States" (WOTUS) under the federal Clean Water Act (CWA). The panel will also offer guidance for counsel on best practices for navigating future legal and regulatory challenges.

Faculty

Tad J. Macfarlan
Partner
K&L Gates, LLP

Mr. Macfarlan advises the firm’s energy, industrial, utility and commercial sector clients on compliance with federal, state and local environmental and land use laws. He has extensive experience working with the regulatory regimes governing wastewater and stormwater discharges, wetland and stream protection, air emissions, solid and hazardous waste management, water withdrawals, chemical and toxic substance controls, release reporting and response, and preservation of endangered species, cultural resources and historic properties. Mr. Macfarlan's practice includes project development, transactional, litigation, enforcement defense and regulatory compliance matters.

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Freedom S.N. Smith
Partner
Ice Miller LLP

Ms. Smith concentrates her practice in the areas of environmental and toxic tort litigation, environmental insurance coverage, product liability and general business litigation. She has experience managing environmental liability in business transactions, hiring and working with environmental consultants to achieve client objectives, litigating cases for both public and private clients involving environmental clean-ups, and handling environmental insurance and coverage claims.

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James Rusk
Partner
Sheppard Mullin Richter & Hampton LLP

Mr. Rusk specializes in project permitting, compliance and litigation involving endangered species, wetlands and water quality, and related environmental review requirements. He guides landowners and developers through the complex permitting and compliance processes under federal and state natural resources laws, including the Endangered Species Act, the Clean Water Act, the California Fish and Wildlife Code and Porter-Cologne Act, the National Environmental Policy Act and the California Environmental Quality Act. He also represents clients in litigation defending federal and state permits against challenge by project opponents, and in suits challenging arbitrary agency action. Mr. Rusk has established strong working relationships with staff at the Army Corps of Engineers, U.S. Fish and Wildlife Service, California Department of Fish and Wildlife, Regional Water Quality Control Boards and U.S. Department of Justice. His areas of expertise also include California water rights, federal Indian law, and the USDA's National Organic Program.

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Description

On Jan. 18, 2023, the EPA and the USACE published a final rule effective Mar. 20, 2023, updating and redefining the term "WOTUS" under the CWA. The final rule represents both (1) a codification of the agencies' pre-2015 approach to determining the extent of WOTUS and (2) a middle ground between the WOTUS rules of the last two administrations. As compared to the Trump administration's Navigable Waters Protection Rule, the final rule protects more wetlands and streams, although it does not extend so far as to protect truly isolated wetlands.

More specifically, in the final rule, the agencies construe the term WOTUS to include traditional navigable waters, territorial seas, interstate waters, impoundments, tributaries, adjacent wetlands, and other waters that meet either the Relatively Permanent standard or the Significant Nexus standard. On the other hand, the final rule excludes from the definition of WOTUS prior converted cropland, waste treatment systems, ditches (including roadside), artificially irrigated areas, artificial lakes or ponds, artificial reflecting pools or swimming pools, water-filled depressions, swales, and erosional features.

In determining whether a tributary, adjacent wetland, or other water falls within the definition of WOTUS, the final rule relies on a two standard approach that stems from the Supreme Court's 2006 decision in Rapanos v. United States: (1) the Relatively Permanent standard; and (2) the Significant Nexus standard. The Relatively Permanent standard establishes jurisdiction with respect to relatively permanent, standing, or continuously flowing waters with a continuous surface connection to traditional navigable waters, territorial seas, or interstate waters. Under the Significant Nexus standard, a waterbody or waterbodies must significantly affect the chemical, physical, or biological integrity of traditional navigable waters, territorial seas, or interstate waters.

Importantly, the pending U.S. Supreme Court case of Sackett v. EPA may serve to unsettle the legal basis of the new WOTUS rule. The case involves a landowner's challenge to the agencies' assertion of jurisdiction over wetlands that are allegedly "adjacent" to other jurisdictional waters, and could serve as a vehicle for the Supreme Court to establish a new legal standard for determining the scope of jurisdiction under the Clean Water Act. So, while the agencies have done their best to ensure that their new rule is legally durable under the Supreme Court's current precedent, the Sackett decision could abruptly change that legal foundation and give rise to new legal vulnerabilities.

Listen as our distinguished panel provides environmental attorneys with an analysis of the recent EPA and USACE final WOTUS rule. The panel will also provide guidance to counsel and offer best practices for understanding the ins-and-outs of how the current WOTUS definition may affect their clients' permitting strategies and other concerns.

Outline

  1. Background of the final WOTUS rule
    1. Definitions, exclusions, and other key issues
  2. EPA's two standard approach
    1. Relatively Permanent standard
    2. Significant Nexus standard
  3. Potential impact of the U.S. Supreme Court case Sackett v. EPA
  4. Best practices and future challenges

Benefits

The panel will cover these and other key issues:

  • How can environmental counsel guide clients in navigating the practical and legal considerations of the updated WOTUS rule?
  • What are some key takeaways with the pending U.S. Supreme Court case Sackett v. EPA?
  • What are best practices and challenges for counsel when advising clients that potentially face WOTUS concerns in their transactions?