Waters of the United States (WOTUS): Current Regulations, Pending Litigation, and the Path Ahead, hosted by Strafford

This CLE webinar will explore the current status of federal regulations governing the scope Clean Water Act jurisdiction, which is dictated by the key term: "Waters of the United States" (WOTUS). The Trump-era Navigable Waters Protection Rule (NWPR), which went into effect in 2020, established a significantly narrower definition of WOTUS than under prior agency rules and guidance. The NWPR is subject to ongoing litigation, and now the Biden Administration has signaled its intent to substantially revise the rules (again). The panel will discuss how counsel should proactively engage with their clients to ensure they remain a step ahead of anticipated changes in the regulatory and enforcement landscape.

Description

The Clean Water Act protects "navigable waters," which the Act defines as "waters of the United States" (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. Mostly recently, in 2020, EPA and the Corps (under the Trump Administration) finalized the Navigable Waters Protection Rule (NWPR), which established a significantly narrower definition of WOTUS than under prior agency rules and guidance. The NWPR maintains federal protections for traditional navigable waters, most perennial and intermittent streams, "adjacent" wetlands and certain other lakes, ponds and impoundments. However, the NWPR categorically excludes from the scope of federal jurisdiction certain other water features, including ephemeral streams and other wetlands and water bodies that lack a direct surface hydrological connection to other jurisdictional waters.

In June 2021, EPA and the Corps, now under purview of the Biden Administration, announced their intention to revise the regulatory definition of WOTUS (again) through a two-step rulemaking process. The first step will reportedly involve the promulgation of a "foundational rule" that restores the regulations that were in place for many years prior to 2015, but with updates to account for relevant Supreme Court decisions. The second step … well, that's still "TBD."

Adding to the uncertainty, litigation concerning the legality of the Trump-era NWPR continues to swirl through multiple federal courts across the nation. While many in affected industries—including those involved in project development, construction, energy generation/transportation, and agriculture, to name a few—see the NWPR as an overdue removal of federal intrusion into local land use decisions, many others feel just as strongly that continued implementation of the NWPR will lead to significant degradation of nation's invaluable water resources.

Our panel will explore the scope of federal jurisdiction under the NWPR, the current status of litigation concerning the rule, and potential regulatory reactions under the Biden Administration. The panel will discuss how counsel should proactively engage with their clients to ensure they remain a step ahead of anticipated changes in the regulatory and enforcement landscape.

Outline

• History of the WOTUS Rule
  • Statutory Language
  • Historic Regulations
  • Key Supreme Court Decisions
• NWPR: Scope of Protections
  • Traditional Navigable Waters
  • Tributaries
  • Wetlands
  • Lakes, Ponds and Impoundments
  • Exclusions
• Current Litigation Status
• Biden Administration Two-Step Plan
  • Foundational Rule
  • A New Approach?

Benefits

The panel will review key issues such as:

• What types of water bodies are subject to protection under the NWPR?
• What is the current status, and potential outcomes, of litigation concerning the NWPR?
• What is the likely timeline and potential substance of future regulatory actions under the Biden Administration?
• What industries are most impacted by anticipated regulatory changes?
• What are the potential opportunities and challenges ahead?