Waters of the U.S.: Navigating the EPA Rule, Status of Challenges …media.straffordpub.com/products/waters-of-the-u-s-navigating-the-ep… · 20-10-2016 · • Double click on

The audio portion of the conference may be accessed via the telephone or by using your computer's

speakers. Please refer to the instructions emailed to registrants for additional information. If you

have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.

Presenting a live 90-minute webinar with interactive Q&A

"Waters of the U.S.": Navigating the EPA Rule,

Status of Challenges to the Rule, and Potential

Effects of the Rule, Including on Pending Transactions

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

THURSDAY, OCTOBER 20, 2016

James M. Auslander, Principal, Beveridge & Diamond, Washington, D.C.

Michael R. Campbell, Partner, Stoel Rives, Portland, Ore.

Daniel J. Deeb, Partner, Schiff Hardin, Chicago

Jeff B. Kray, Partner, Marten Law, Seattle

Tips for Optimal Quality

Sound Quality

If you are listening via your computer speakers, please note that the quality

of your sound will vary depending on the speed and quality of your internet

connection.

If the sound quality is not satisfactory, you may listen via the phone: dial

1-866-755-4350 and enter your PIN when prompted. Otherwise, please

send us a chat or e-mail [email protected] immediately so we can

address the problem.

If you dialed in and have any difficulties during the call, press *0 for assistance.

Viewing Quality

To maximize your screen, press the F11 key on your keyboard. To exit full screen,

press the F11 key again.

FOR LIVE EVENT ONLY

Continuing Education Credits

In order for us to process your continuing education credit, you must confirm your

participation in this webinar by completing and submitting the Attendance

Affirmation/Evaluation after the webinar.

A link to the Attendance Affirmation/Evaluation will be in the thank you email

that you will receive immediately following the program.

For additional information about continuing education, call us at 1-800-926-7926

ext. 35.

FOR LIVE EVENT ONLY

Program Materials

If you have not printed the conference materials for this program, please

complete the following steps:

• Click on the ^ symbol next to “Conference Materials” in the middle of the left-

hand column on your screen.

• Click on the tab labeled “Handouts” that appears, and there you will see a

PDF of the slides for today's program.

• Double click on the PDF and a separate page will open.

• Print the slides by clicking on the printer icon.

FOR LIVE EVENT ONLY

Strafford CLE Webinar

“Waters of the U.S.” Defined: Part I – Why Should We Care?

James M. Auslander

October 20, 2016

6

Do You Want to Develop or Operate a:

• Road?

• Home?

• Property Improvement?

• Upstream Energy Facility?

• Pipeline?

• Mine?

• Power Plant?

• Manufacturing site?

• Pretty much any other infrastructure or facility where water is present or nearby?

THEN THIS WOTUS RULE MAY AFFECT YOU!

7

The Clean Water Act

• PURPOSE: To restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. 33 U.S.C. § 1251(a)

• SCOPE: The Act covers “navigable waters”: “the waters of the United States, including the territorial seas” 33 U.S.C. § 1362(7)

8

CWA § 402 NPDES Permit Program

• Governs discharges from a point source into Waters of the U.S.

• Implications:

− Require a NPDES permit from EPA or delegated State

− Water Quality Standards for each water feature defined as WOTUS

◦ Beneficial Uses

◦ Criteria, written into permits

− Stormwater Considerations

9

CWA § 404 Dredge and Fill Permit Program

• Governs placement of dredged or fill material into Waters of the U.S.

• Implications:

− Requires a 404 permit from Army Corps of Engineers

− LEDPA, other substantive requirements

− EPA veto authority

10

CWA § 311 Oil and Hazardous Waste Spill Prevention

• Governs the spill of oil and hazardous substances into waterways.

• Scope: Waters of the U.S.

• Implications

− Spill reporting and prevention requirements

− Liability for spill response costs, penalties

11

Potential Liability: Administrative Penalties

• Operating in WOTUS without necessary approvals could lead to liability under the CWA and administrative, civil, or even criminal penalties.

• Enforcement efforts can be initiated by the government, or by the public via citizen suits.

• Administrative Penalties

• Class I Violation

− $51,570 Maximum Penalty

• Class II Violation

− $257,848 Maximum Penalty

12

Potential Liability: Civil and Criminal Penalties

• Civil Penalties

− Maximum: $51,570/day for each violation

• Criminal Penalties

− Negligent: Max $25,000/day, 1 year imprisonment

− Knowing: Max $50,000/day, 3 years imprisonment

13

Other Practical and Uncertain Issues

• Relative burdens to prove or disprove WOTUS

• Status of prior jurisdictional determinations

• Third-party challenges/litigation

• Administration of WOTUS exclusions and case-by-case assessments

• EPA oversight of projects with 404 permits

• Triggering of other environmental laws

• Incidence, length, and cost of project delays

• Data gaps

14

History of WOTUS Interpretation

• No major controversy for major waters, obviously covered

• Controversy for jurisdiction over less obvious water, e.g., ditches, intermittent streams, and isolated waters/wetlands

• Different initial Corps and EPA interpretations, litigation

• Regulations in the late 1970s and early 1980s adopted a broad, vague WOTUS interpretation, leading to three seminal Supreme Court cases on the meaning of WOTUS

15

This presentation is not intended as, nor is it a substitute for, legal advice. You should consult with legal counsel for advice specific to your

circumstances. This presentation may be considered lawyer advertising under applicable laws regarding electronic communications.

Questions?

James M. Auslander

Shareholder

Washington D.C.

[email protected], (202) 789-6009

Beveridge & Diamond, P.C.

Waters of the U.S. Defined:

Part II – Supreme Court Decisions

Presented by

Michael R. Campbell

October 20, 2016

17

OVERVIEW OF PART II

• This portion of the presentation will discuss:

– The U.S. Supreme Court’s interpretation of “waters of

the United States” (WOTUS)

– The framework that interpretation provides for the new

rule defining WOTUS and for the legal challenges to it

18

STATUTORY TERMS

• The Clean Water Act (CWA) protects “navigable

waters,” which it defines simply as “the waters of

the United States, including the territorial seas”

(WOTUS) (33 U.S.C. § 1362(7))

• Why does the CWA, which has almost nothing to

do with navigation, use the term “navigable

waters” to describe the scope of its protection?

19

A CONSTITUTIONAL LAW DETOUR

• Congress may legislate only on those subjects that are

within its enumerated “powers” under the U.S.

Constitution

• The CWA, like most other federal environmental statutes,

is based on the Constitution’s Commerce Clause:

– “Congress shall have power . . . to regulate commerce with

foreign nations, and among the several states” (Art. I, § 8)

20

THE SCOPE OF THE COMMERCE

CLAUSE

• Waters used for commerce—navigable waters—have

traditionally been considered within Congress’

Commerce Clause power to protect

• Since the New Deal, the Supreme Court has construed

Congress’ power under the clause much more broadly,

although the power is not unlimited. For example:

– Congress may regulate growing wheat for home consumption,

Wickard v. Filburn (1942), and marijuana for personal use,

Gonzales v. Raich (2005), under the Commerce Clause

– But the Commerce Clause is not so broad as to allow Congress

to prohibit guns near schools, U.S. v. Lopez (1995)

21

NAVIGABLE WATERS OR NEARLY ALL

WATERS?

• By protecting “navigable waters” but defining them as

WOTUS, Congress created enormous ambiguity

regarding which waters the CWA protects

– Only navigable waters?

– All navigable waters plus all other waters that are within

Congress’ Commerce Clause power—a set of waters that is not

well-defined but which potentially includes nearly all waters?

– Some set of waters within these two extremes?

• Note that, based on their reading of the CWA’s legislative

history, EPA and the Corps of Engineers have never

considered groundwater to be WOTUS

22

NRDC V. CALLAWAY (1975)

• Soon after Congress enacted the CWA in 1972, the Corps

defined WOTUS as traditionally navigable waters, but EPA

adopted a much broader definition

• A federal district court invalidated the Corps’ rule, holding that

Congress, by defining “navigable waters” as WOTUS,

intended to protect all waters “to the maximum extent

permissible under the Commerce Clause” (NRDC v. Callaway,

392 F. Supp. 685, 686 (D.D.C. 1975))

• In response, the Corps ultimately adopted a much broader

definition of WOTUS, similar to EPA’s, which encompassed

most surface waters

23

U.S. V. RIVERSIDE BAYVIEW

HOMES, INC., 474 U.S. 121 (1985)

• At issue: 80 acres of wetlands extending to but not

inundated by Black Creek, a navigable tributary of Lake

St. Clair, Michigan

• The Corps’ regulatory definition of WOTUS included

wetlands “adjacent” to other WOTUS (including wetlands

adjacent to traditionally navigable waters and wetlands

adjacent to non-navigable tributaries of navigable waters)

24

RIVERSIDE BAYVIEW—DECISION

• The Court upheld (9-0) the Corps’ determination that the

wetlands were WOTUS:

– Under the CWA, WOTUS are not limited to traditionally navigable

waters and include at least some wetlands (“the term ‘navigable’

as used in the Act is of limited import”)

– Wetlands need not be created or inundated by traditionally

navigable waters to be WOTUS

– The Court deferred to the Corps’ reasonable “ecological

judgment” that the wetlands functioned as “integral parts of the

aquatic environment” (physically, chemically, and biologically)

– The Corps may define WOTUS to include all wetlands adjacent to

other waters that are WOTUS

25

SOLID WASTE AGENCY OF N. COOK COUNTY V.

U.S. ARMY CORPS, 531 U.S. 159 (2001) (SWANCC)

• At issue: Isolated ponds of up to several acres that

formed in excavations at an abandoned sand and gravel

pit; the ponds were used by migratory birds but had no

reported physical connection to other waters

• Because of the presence of migratory birds, the Corps

interpreted the abandoned ponds to be within its

definition of WOTUS, which included “waters such as

intrastate . . . [waters], the use, degradation or

destruction of which could affect interstate or foreign

commerce” (33 C.F.R. § 328.3(a)(3) (1999))

26

SWANCC—DECISION

• The Court held (5-4) that the Corps could not treat isolated

ponds as WOTUS based on the presence of migratory birds

– The majority distinguished Riverside Bayview as a case in which

there was a “significant nexus between the wetlands and

‘navigable waters’”; “it is one thing to give a word [‘navigable’]

limited effect and quite another to give it no effect whatever”

– The majority declined to find that migratory birds’ use of the

ponds provided a sufficient connection to navigable waters

• The dissent would have upheld the Corps and argued that

WOTUS need not have any connection to navigable waters

27

RAPANOS V. U.S., 547 U.S. 715 (1986) (WITH

CARABELL V. U.S.)

• At issue: 4 wetlands adjacent to ditches or other non-

navigable tributaries of navigable waters; 3 of the wetlands

had some surface connection to the adjacent ditch or tributary;

a 4-foot berm separated 1 of the wetlands from its adjacent

ditch

• The Corps concluded that all the wetlands were WOTUS

based on its rule defining WOTUS, which included wetlands

“adjacent” to “tributaries” of navigable waters

• Although 5 of the 9 Supreme Court justices voted to remand

the cases to the lower courts, a majority could not agree on

the reason for doing so

28

RAPANOS—PLURALITY (SCALIA)

• Justice Scalia wrote for a plurality of 4 justices:

– WOTUS are not limited to traditionally navigable waters

– But WOTUS are limited to “relatively permanent, standing or

continuously flowing bodies of water ‘forming geographic

features’”

– Wetlands are WOTUS only if they have a “continuous surface

connection” to waters that are WOTUS “in their own right, so that

there is no clear demarcation between ‘waters’ and wetlands”

– Here, if the wetlands did not have a continuous surface

connection to a tributary that was a “relatively permanent”

waterbody, and thus a WOTUS, the wetlands could not be

WOTUS

29

RAPANOS—KENNEDY’S CONCURRING OPINION

• Justice Kennedy, writing only for himself, agreed with the

plurality that the cases should be remanded, but he

rejected the plurality’s reasoning:

– WOTUS include traditionally navigable waters and all waters with

a “significant nexus” to traditionally navigable waters

– Waters have a “significant nexus” to navigable waters if they,

“either alone or in combination with similarly situated [waters] in

the region, significantly affect the chemical, physical, and

biological integrity” of navigable waters

– WOTUS need not be “relatively permanent” and need not have a

surface connection to traditionally navigable waters

30

RAPANOS—STEVENS’ DISSENT

• Justice Stevens wrote for the 4 dissenting justices, who

would have upheld the Corps’ determination that the

wetlands were WOTUS:

– Giving appropriate deference to the Corps’ definition of WOTUS,

the Court should have held that adjacency to a tributary of a

navigable water is sufficient to establish a “significant nexus” with

the navigable water—without the need to establish a “significant

nexus” in each case

– Because the 4 dissenting justices would uphold the Corps’

jurisdiction if either the plurality or Justice Kennedy’s test were

satisfied, lower courts should uphold the Corps’ jurisdiction if

either test is met

31

BEYOND RAPANOS

• Because Justice Kennedy’s “significant nexus” test is

generally far broader than the plurality’s test, EPA’s and

the Corps’ WOTUS determinations since Rapanos, as

well as the new rule defining WOTUS, have focused on

demonstrating that waters—either individually or

categorically—have a significant nexus to navigable

waters

• The next presentations will discuss these post-Rapanos

developments

32

CONTACT

Michael R. Campbell

Partner

Stoel Rives LLP

760 SW Ninth Avenue, Suite 3000

Portland, Oregon 97205

Direct: (503) 294-9676

[email protected]

www.stoel.com

mailto:[email protected]

http://www.stoel.com/

© 2014 Schiff Hardin LLP. All rights reserved.

Daniel Deeb

October 20, 2016

WOTUS Defined Part III: The Newly Issued Rule

33


Promulgated expressly to remedy inconsistent and ambiguous jurisdictional determinations.

In response to the Supreme Court opinions, the agencies issued guidance in 2003 (post-SWANCC) and 2008 (post-Rapanos). However, these two guidance documents did not provide or the pubic or agency staff with the kind of information needed to ensure timely, consistent, and predictable jurisdictional determinations. Many waters are currently subject to case-specific jurisdictional analysis to determine whether a “significant nexus” exists, and this time and resource intensive process can result in inconsistent interpretation of CWA jurisdiction and perpetuate ambiguity over where the CWA applies.

WOTUS Rule Preamble

34

34


Basic WOTUS Rule Framework

• Announced May 27, 2015; published in the Federal Register on June 29, 2015; and effective on August 28, 2015

• Clarifies which waters which are:

A. Always jurisdictional (six types)

B. Subject to a case-by-case jurisdictional determination via a defined “significant nexus” test

C. Excluded

35

35


A. Waters That Are Always Jurisdictional

1. Traditional navigable waters

2. Interstate waters

3. Territorial seas

4. Impoundments of jurisdictional waters

5. Tributaries

6. Adjacent waters

36


1. Traditional Navigable Waters

• Subject to §9 or 10 of the 1899 Rivers & Harbors Act;

• Determined to be navigable-in-fact under Federal law by a Federal Court;

• Currently used for commercial navigation, including commercial waterborne recreation (for example, boat rentals, guided fishing trips, or water ski tournaments);

• Historically used for commercial navigation, including commercial waterborne recreation; or

• Susceptible to being used in the future for commercial navigation, including commercial waterborne recreation.

37


2. Interstate Waters

• Jurisdiction based on the CWA and predecessor statutes where “interstate waters” were defined as all rivers, lakes, and other waters that flow across, or form a part of, state boundaries.

• Jurisdictional even if not navigable or connected to navigable waters.

• Captures impoundments of, tributaries to, and waters adjacent to interstate waters because they have a significant nexus to interstate waters.

• Maintains status quo.

38


3. Territorial Seas

• CWA 502(8) defines “territorial seas” as “the belt of the seas measured from the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters, and extending seaward a distance of three miles.”

• Maintains status quo.

39


4. Impoundments of Jurisdictional Waters • An impoundment of a non-jurisdictional water can

become jurisdictional. E.g. An impounded waters become navigable-in-fact.

40


5. Tributaries

• The WOTUS Rule posits that “tributaries” (as it defines the term) inherently have a significant nexus to other jurisdictional waters. EPA believes that tributaries are thus, by rule, jurisdictional waters.

• “Tributary” definitional elements:

o The potential tributary must flow directly or through another jurisdictional water

&

o It must have a bed and banks and an indicator of ordinary high water mark.

41


5. Tributaries (Cont. 1)

• In effect, the WOTUS Rule requires 3 OHWM indicators: Bed, banks and one more.

• The 3rd OHWM indicator could be staining, debris deposits, changes in vegetation, changes in sediment characteristics, or “other indicator identified in the rule or agency guidance.”

• Indicators can be determined via field inspection or desktop

• EPA contends that such OHWM indicators sufficiently demonstrate a significant nexus.

42


5. Tributaries (Cont. 2)

• A “tributary” can be a natural or man-made/altered water (e.g. rivers, streams, canals, and ditches)

• A “tributary” can be perennial, intermittent, or ephemeral

• A water can be captured even if downstream of a natural and man-made break (e.g. dams) if bed and banks and another OHWM indicator can be identified upstream of the break.

• Excludes certain categories of ditches.

– Ditches that flow only after precipitation

• Excludes erosion features (gullies, rills and ephemeral streams) that lack bed/banks and an OHWM

43


6. Adjacent Waters

• The WOTUS Rule defines “adjacent” as bordering, contiguous, or neighboring. Applies to all waters, not just wetlands.

• “Neighboring” is defined to include all waters within:

i. 100ft of another jurisdictional water

ii. the 100yr floodplain, or 1500ft, of another jurisdictional water

iii. 1500ft of the high tide line of another jurisdictional water

44


6. Adjacent Waters (Cont. 1)

• An entire water is deemed adjacent if any part is contagious, bordering or neighboring, even if separated by a natural or man-made break.

• “Adjacent waters” broadly includes all waters - wetlands, ponds, lakes, oxbows, impoundments, and similar water features.

45


B. Waters Subject to Case-by-Case Jurisdictional Analysis • Subject to a “significant nexus” test

• Categorical “Other Waters”

1) Prairie potholes (upper Midwest)

2) Carolina and Delmarva bays (Atlantic Seaboard)

3) Pocosins (Central Atlantic)

4) Western vernal pools (California)

5) Texas coastal prairie wetlands (Texas Gulf Coast)

• Other waters w/ 100yr floodplain or 4000ft of OHWM or high tide

46

46


Other Waters

• Waters of each of the 5 categories are assumed to be similarly situated & must be assessed in the aggregate

• Waters w/ 100yr floodplain of traditional nav. water, interstate water or territorial sea

• Waters w/ 4000ft of OHWM or high tide of other jurisdictional water

47


Significant Nexus Test

A water has a “significant nexus” when any single function or combination of functions performed by the water, alone or together with similarly situated waters in the region, contributes significantly to the chemical, physical, or biological integrity of the nearest traditionally navigable water, interstate water or territorial sea.

48


Significant Nexus Test

Assessed by evaluating the following aquatic functions:

(i) Sediment trapping, (ii) Nutrient recycling, (iii) Pollutant trapping, transformation, filtering, and transport, (iv) Retention and attenuation of flood waters, (v) Runoff storage, (vi) Contribution of flow, (vii) Export of organic matter, (viii) Export of food resources, and (ix) Provision of life cycle dependent aquatic habitat (such as foraging, feeding, nesting, breeding, spawning, or use as a nursery area) for species in certain areas

49


C. Waters Excluded from Jurisdiction

Primary exclusions generally include:

• Prior converted cropland

• Artificial features created in dry land (e.g. artificial lakes, ponds, reflecting and swimming pools)

• Stormwater control & waste treatment systems designed to meet CWA requirements.

• Groundwater

• Ditches with (i) ephemeral flow not a relocated tributary or excavated in a tributary, (ii) intermittent flow not relocated tributary or excavated in a tributary, or drain wetlands, or (iii) that do not contribute flow to traditional navigable waters, interstate waters, or the territorial seas.

50

50


C. Waters Excluded from Jurisdiction (Cont. 1)

• Puddles

• Erosional features

• Detention and retention basins built for wastewater recycling

• Depressions incidental to mining/construction activity

51

Part IV – Challenges to the Rule

Jeff B. Kray

October 20, 2016

“Waters of the U.S.” Defined:

Navigating the Scope of the EPA Final Rule


July 21, 2015

JUDICIAL CHALLENGES – STATES’

SUITS

• 28 States have filed suits challenging the WOTUS Rule • Alabama, Alaska, Arizona, Arkansas, Colorado, Florida,

Georgia, Idaho, Kansas, Kentucky, Louisiana, Michigan, Missouri, Mississippi, Montana, Nebraska, Nevada, New Mexico, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, Wisconsin, and Wyoming

• Five separate complaints

• Five different federal District Courts

• Four petitions for review in Circuit Courts of Appeal

• Seven states have intervened on behalf of EPA and the Army Corps in support of the WOTUS Rule • Connecticut, Hawaii, Massachussets, New York, Oregon,

Vermont, Washington, and the District of Columbia)

53


July 21, 2015


SUITS

• 13 States (Nebraska, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming) • U.S. Dist. Ct. for the District of North Dakota – June 29,

2015

• Claimed violations: • Clean Water Act

• National Environmental Policy Act (NEPA)

• Constitution (Commerce Clause, 10 th Amendment Reserved Powers)

• 2 States (Ohio and Michigan) • U.S. Dist. Ct. for Southern District of Ohio – June 29, 2015

• Claimed violations: • Clean Water Act 54


July 21, 2015


SUITS

• 3 States (Texas, Louisiana, and Mississippi)

• U.S. Dist. Ct. for the Southern District of Texas and 5 th Circuit Court of Appeals – June 29, 2015

• Claimed violations: • Administrative Procedures Act


• 9 States (Georgia, West Virginia, Alabama, Florida, Kansas, Kentucky, South Carolina, Utah, and Wisconsin)

• U.S. Dist. Ct. for Southern District of Georgia – June 30, 2015

• Claimed violations: • Clean Water Act


• Administrative Procedures Act 55


July 21, 2015


SUITS

• 1 State (Oklahoma)

• U.S. Dist. Ct. for the Northern District of Oklahoma – July 9, 2015

• Claimed violations:

• Administrative Procedures Act


• Clean Water Act

56


July 21, 2015

JUDICIAL CHALLENGES – INDUSTRY

SUITS

• 36 Industry groups filed suits challenging the WOTUS rule

• Seven separate complaints

• Six different federal District Courts

• Four petitions for review in four different Circuit Courts of Appeal

57


July 21, 2015


SUITS

• 14 Business Associations (including American Farm Bureau Federation, American Petroleum Institute, National Assn. of Home Builders, National Assn. of Manufacturers, National Mining Assn., and National Corn Growers Assn.)

• U.S. Dist. Ct. for the Southern District of Texas – July 2, 2015

• Claimed violations:

• Administrative Procedures Act (incorporating Regulatory Flexibility Act and Anti-Lobbying Act claims)

• Constitution (Commerce Clause, Due Process Clause)

• Clean Water Act

58


July 21, 2015


SUITS

• Murray Energy (country’s largest privately owned coal company) • U.S. Dist. Ct. for the Northern Dist. of West Virginia and 6 th

Circuit Court of Appeals – June 29, 2015

• Claimed violations: • Administrative Procedures Act

• Constitution (Separation of Powers)

• Clean Water Act

• U.S. Chamber of Commerce (plus four others) • U.S. Dist. Ct. for Oklahoma and 10 th Circuit – filed July 10,

2015

• Southeastern Legal Foundation (plus two others) • U.S. Dist. Ct. for Georgia and 11 th Circuit – filed July 13,

2015

59


July 21, 2015


SUITS

• Washington Cattlemen Ass’n (plus eight others)

• U.S. Dist. Ct. for Minnesota – filed July 15, 2015

• Utility Water Act Group

• 5th Circuit – filed July 17, 2015

• Arizona Mining Co.

• U.S. Dist. Ct. for Arizona – filed September 1, 2015

• Assoc. American Railroads and Port Terminal Railroad Assoc.

• U.S. Dist. Ct. for Texas – filed September 22, 2015

60


July 21, 2015

JUDICIAL CHALLENGES –

ENVIRONMENTAL SUITS

• Waterkeeper Alliance (plus eight others)

• U.S. Dist. Ct. for N. California and 9 th Circuit – filed August 27 and July 22, 2015

• Puget Soundkeeper and Sierra Club

• U.S. Dist. Ct. for W. Washington and 9 th Circuit – filed August 20 and July 22, 2015

• Natural Resources Defense Council

• U.S. Dist. Ct. for District of Columbia and 2nd Circuit – filed August 24 and July 22, 2015

• National Wildlife Federation

• U.S. Dist. Ct. for District of Columbia – filed July 22, 2015

61


July 21, 2015

JUDICIAL CHALLENGES –

ENVIRONMENTAL SUITS

Environmental Group Arguments:

• WOTUS Rule formally adopts long-standing exemptions (silviculture, agriculture, ranching, etc.) that arbitrarily exempts and removes safeguards for critically important streams, wetlands, and waters

• WOTUS Rule arbitrarily uses a 4,000-foot boundary as the outer limit for protecting small streams and wetlands that have no direct surface connection to downstream navigable waters

• WOTUS Rule will weaken protection for waterways on and near big agribusiness operations

62


July 21, 2015

• Circuit Court cases

• “Randomly” assigned to and consolidated in 6 th Circuit

• 6th Circuit

• Ruled 2-1 that it had jurisdiction to hear challenges to the WOTUS rule

(Feb. 2016)

• Stayed the WOTUS rule nationwide pending legal resolution

• Denied petitions by a group of business, agriculture and other industry

groups to reconsider the decision in the full court

• Proceeding to hear the case

• National Assn. of Manufacturers appealed jurisdictional decision to the

Supreme Court (Sept. 2016)

• District Court cases

• All except North Dakota stayed or dismissed

JUDICIAL CHALLENGES – CURRENT

STATUS


July 21, 2015

LEGISLATIVE CHALLENGES - DIRECT

S. 1140 – Last action November 2015 • Would set new requirements – both substantive and

procedural – for any CWA jurisdictional regulation.

• Would require EPA/Corps to withdraw and rework WOTUS rule.

• Passed out of Senate Environment and Public Works Committee June 2015.

• Set for full Senate this summer.

• House counterpart, H.R. 1732, passed in May 2015.

• Congressional Budget Office estimates EPA’s compliance costs at $5M.

• Subject to Presidential Veto (White House has said President would veto).

• Unclear whether votes are available to override likely veto.

64


July 21, 2015

LEGISLATIVE CHALLENGES - INDIRECT

Appropriations

• Congress has sought: • To defund the WOTUS rule.

• Attach riders to EPA’s budget curtailing funding to implement the rule.

Federal Lobbying

• May 26, 2015, Sen. David Vitter (R-La.) sent letter to EPA Administrator Gina McCarthy. • Raised questions about whether EPA’s public outreach

campaign for the WOTUS rule violated federal lobbying laws and DOJ policies.

• Also asserted EPA was “ignoring its requirements under the Regulatory Flexibility Act (RFA) to avoid undue economic impacts to small businesses in the rulemaking process.”

65

JEFF B. KRAY

[email protected] 1191 Second Ave, Suite 2200 Seattle, WA 98101 T 206.292.2608 martenlaw.com

66

Contact

Documents

Waters of the U.S.: Navigating the EPA Rule, Status of Challenges …media.straffordpub.com/products/waters-of-the-u-s-navigating-the-ep… · 20-10-2016 · • Double click on