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Clean Water Act: New Rule defining “Waters of the United States”

Event Description and Agenda:

On August 28th, the new rules for the Clean Water Act (CWA) defining "Waters of the United States" (WOTUS) will go into effect. Their enactment will be greeted by several lawsuits, already filed. Although the stated aim of the new regulations is to clarify ambiguous aspects of the original Act, many believe the new provisions add unnecessary and unwelcome complexity, change and expansion to the jurisdiction of the Environmental Protection Agency (EPA) and the Army Corps of Engineers.

This presentation will provide an overview of the new CWA Rule. It will discuss the key changes in the Rule, various perspectives on the Rule, potential changes to scope of Corps jurisdiction, and potential implications for industry practices in obtaining permits under the CWA.

I. Overview

• Brief overview of the Clean Water Act
• Immediate effect of the Rule

II. Key Aspects of the Rule

• Codified Corps practices
• Eight categories of waters of the U.S.
• New exceptions included in the Rule
• Significant nexus test

III. Clarifying the Term "Adjacent Waters" as WOTUS

• Defining "adjacent waters"
• Addition of measurable limits

IV. Potential Changes in Treatment of Specific Waters

• Wetlands
• Tributaries
• Ditches
• Stormwater ponds
• Groundwater
• Erosional features
• Other waters

V. Next Steps in Implementing the Rule

• Agency changes in application review process upon adoption
• Impact of recently-filed litigation on project filings, post-implementation

VI. New Considerations in Obtaining Permits

• Identifying adjacent waters near project sites
• Increased utilization of aerial imaging
• Emphasis on beds, banks, and ordinary high water mark