Will the New WOTUS Rule Float?
May 22, 2014
ELI Professional Practice Seminar
The Clean Water Act (CWA) defines jurisdiction in terms of “navigable waters,” which it in turn defines as “the waters of the United States, including the territorial seas.” From this beginning, the definition of “waters of the United States” has followed a winding path through the Supreme Court’s decisions in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) and Rapanos v. United States, 547 U.S. 715 (2006).
The Environmental Protection Agency (EPA), together with the U.S. Corps of Engineers, has now proposed a rule further defining “waters of the United States,” which is critical to identifying the jurisdiction of the CWA. EPA believes that offering clearer lines of distinction between jurisdictional and non-jurisdictional waters will decrease costs for businesses and the public by decreasing litigation and making it easier for stakeholders to plan. The final rule will be shaped by public comment, the period for which began in April 2014, after the EPA and the Corps released the proposed rule in March 2014.
Not surprisingly, stakeholders voice both opposition to and support of the proposed rule. An expert panel discussed the genesis of the proposed rule and legal, practical, and economic implications of the proposed rule for various stakeholders.
Bruce Myers, Senior Attorney, Environmental Law Institute (moderator)
Deidre G. Duncan, Partner, Hunton & Williams LLP
Jan Goldman-Carter, Wetlands & Water Resources Counsel, National Wildlife Federation
Ken Kopocis, Senior Advisor to the Acting Assistant Administrator for Water, EPA
Lance D. Wood, Assistant Chief Counsel, Environmental Law and Regulatory Programs of the U.S. Army Corps of Engineers
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