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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Environmental

Date & Time
  • event Date

    Tuesday, May 14, 2024

  • 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 explore the scope of federal jurisdiction under the Clean Water with respect to “waters of the United States” (WOTUS) following the recent U.S. Supreme Court decision in Sackett v. EPA (2023) and subsequent litigation and rulemaking activity. The panel will discuss how counsel should proactively engage with clients to ensure they remain in compliance in an ever-evolving regulatory and enforcement landscape.

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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Endre M. Szalay
Partner
K&L Gates, LLP

Mr. Szalay is a partner in the Environment, Land, and Natural Resources group in the Seattle office. He assists a broad range of clients, including public entities, utilities, small businesses, and large corporations, in developing compliance strategies to solve complex problems. Mr. Szalay's practice focuses on compliance counseling under the full suite of environmental statutes, with an emphasis on the Clean Water Act (CWA); National Environmental Policy Act (NEPA) and state equivalents; Endangered Species Act (ESA); and the Comprehensive, Environmental Response, Compensation and Liability Act (CERCLA) and state equivalents.

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Description

The Clean Water Act protects "navigable waters," which the Act defines as WOTUS. The Act prohibits discharges of pollutants, including fill material, to WOTUS without first obtaining a permit from either the U.S. Environmental Protection Agency (EPA) or Army Corps of Engineers (Corps).

Over the past half-century, EPA, the Corps, and the courts have offered a wide range of interpretations concerning the types of water bodies that qualify as "WOTUS" and are therefore subject to federal regulation under the Clean Water Act. In recent years under different administrations, rulemaking has vacillated between creating narrower WOTUS definitions to more expansive definitions having a whiplash effect on counsel and their clients.

In 2020, EPA and the Corps (under the prior administration) finalized the Navigable Waters Protection Rule (NWPR), which established a significantly narrower definition of WOTUS than under prior agency rules and guidance. In 2023, the agencies, under the purview of a new administration, issued a more expansive rule that took effect on March 20, 2023. However, on May 25, 2023, the U.S. Supreme Court in Sackett v. EPA discarded the "significant nexus" test when determining jurisdiction under the CWA and established a new standard. As a result, the agencies revised the rule once more, issuing a final rule that comports with Sackett on Aug. 29, 2023, without going through the notice and comment rulemaking process.

As a result, litigation continues to swirl through federal courts across the nation challenging the revised rule and the procedure by which it was revised.

Listen as our expert panel examines the status of the NWPR and notable current litigation. The panel will also offer best practices for compliance given the ever-evolving regulatory and enforcement landscape.

Outline

  1. Introduction: WOTUS regulatory history
  2. Sackett v. EPA overview
  3. Latest WOTUS rule
  4. Notable current litigation
  5. Looking ahead
  6. Best practices for compliance

Benefits

The panel will review key issues such as:

  • What types of water bodies are subject to protection post-Sackett?
  • What effect has Sackett had on the regulatory definition of WOTUS? What may be expected for future rulemaking?
  • What is the current status of WOTUS litigation?
  • What industries are most impacted by these regulatory changes?
  • What are the potential opportunities and challenges ahead for counsel and their clients?