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- Current state of Clean Water Act regulation from the viewpoint of both the regulated and regulatory communities;
- Overview of the impact of SWANCC and Rapanos on Clean Water Act jurisdiction;
- Description and goals of the proposed joint USEPA-USACE rulemaking;
- Perspective of the regulated community on the impact of jurisdictional uncertainty; and,
- Future of Clean Water Act regulation from a non-governmental organization’s outlook. The Obama administration’s recently proposed joint EPA/Corps of Engineers rulemaking is an attempt to provide clarity in the post-Rapanos world of wetlands regulation. But will it provide certainty and stability for both the regulated and regulatory communities?
For more than thirty years, the definition of “waters of the United States” was given broad interpretation as applied to federal jurisdiction under Clean Water Act. By regulation, it included “all waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide.” A long line of case law placed little restriction on the Constitutional extent of this definition.
That status quo was first eroded with the Supreme Court decision in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U. S. 159 (2001) (“SWANCC”), and then exploded in Rapanos v. United States, 547 U. S. 715 (2006) (“Rapanos”). In Rapanos, the Supreme Court was deeply divided regarding the jurisdiction of the Corps of Engineers under the Clean Water Act. In that decision, the nine justices issued five separate opinions: one plurality opinion, two concurring opinions, and two dissenting opinions, with no single opinion commanding a majority of the Court. This led Chief Justice John Roberts to predict, “It is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress’ limits on the reach of the Clean Water Act. Lower courts and regulated entities will now have to feel their way on a case by case basis.” His words could not have been more prophetic.
The intervening five years since Rapanos have yielded several attempts at clarifying Clean Water Act jurisdiction and regulation. These attempts culminated in the April 27, 2011 release of "Draft Guidance on Identifying Waters Protected by the Clean Water Act," jointly authored by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers. That document is currently on notice for a 60-day public comment period. The proposed guidance is an effort to clarify regulatory responsibility for small and ephemeral streams, waterbodies without a distinct surface connection to interstate waters or traditional navigable waters, and recognition that changes in chemical, physical and biological composition of waterways can have systemic consequences. The new guidance does not alter existing exemptions for normal agricultural, forestry and ranching practices under the Clean Water Act. The guidance excludes certain artificially irrigated areas, many agricultural and roadside ditches, and artificial lakes or ponds, including farm and stock ponds from regulation. Presenters Panelists include a seasoned line-up of professionals: -Marianne Horinko (Moderator), President, The Horinko Group -Beth Pitrolo, Assistant District Counsel, U.S. Army Corps of Engineers, St. Louis District -David Evans, Director, Wetlands Division, U.S. Environmental Protection Agency HQ -Deidre Duncan, Partner, Hunton & Williams