EPA's 'Waters of the United States' Rule: Substance and Significance

• Date: 01 November 2015

11-2015 NEWS & ANALYSIS 45 ELR 10995

D I A L O G U E

EPA’s “Waters of the United States”

Rule: Substance and Signif‌icance

Summary

Four hundred stakeholder meetings and one million

comments later, the U.S. Environmental Protection

Agency released the nal Waters of the United States

(WOTUS) rule on May 27, 2015. Response to the

rule has been immediate, vocal, and varied across the

political spectrum. Some environmental advocates

have criticized the rule for what it explicitly excludes,

arguing that the rule leaves out too many streams and

wetlands. At the same time, industry and agriculture

interests have decried the rule as federal overreach.

Understanding the scope, vulnerabilities, and likely

implementation of the WOTUS rule is central for

practitioners. What does the Clean Water Act (CWA)

actually cover under the nal rule? Are there activi-

ties that may be subject to the CWA for the rst time

or no longer covered? Where do the uncertainties lie?

What legal challenges might advocates bring against

the rule? Will the federal government have new tools

to extend federal jurisdiction, and how will states

react? On June 8, 2015, the Environmental Law Insti-

tute convened a panel of experts to explore this vitally

important new rule. Below we present a transcript of

the discussion, which has been edited for style, clarity,

and space considerations.

Panelists:

Scott Schang (moderator) is Executive Vice President of

the Environmental Law Institute.

Ken Kopocis is Deputy Assistant Administrator in the

Oce of Water at the U.S. Environmental Protection

Agency.

Craig R. Schmauder is Deputy General Counsel for

Installations, Environment, and Civil Works in the U.S.

Department of the Army.

Deidre G. Duncan is a Partner at Hunton & Williams

LLP.

Jon Devine is Senior Attorney for Water Programs at the

Natural Resources Defense Council.

Scott Schang: e Clean Water Rule, dening the

statutory term “waters of the United States” for jurisdic-

tional purposes (often referred to as the WOTUS Rule),

was jointly issued by the U.S. Environmental Protection

Agency (EPA) and the U.S. Army Corps of Engineers (the

Corps) and goes into eect August 28, 2015.1 It demarcates

the limit of federal jurisdiction over waters and wetlands

for purposes of the Clean Water Act (CWA).2 As such,

this rule has a signica nt impact on the kinds of activi-

ties that will be required to obtain federal permits, rang-

ing from land development that might impact wetlands to

discharges into streams and rivers.

We are bringing you a panel of top experts today to

explain t he rule, help place it in context, and explore the

likely future for the rule and its impact. is is part of

the Environmental L aw Institute’s (ELI’s) mission to make

law work for better economic, social, and environmental

outcomes. rough our research, education, convenings,

and publications, we make environmental progress real,

whether it’s by examining U.S. law as we are doing today, by

educating over 2,000 judges in 25 countries, or by working

with partners to strengthen Jordan’s water management,

Liberia’s timber management, or Mexico’s implementation

of water a nd energy-eciency mea sures. Our approach is

strictly nonpartisan. As we are doing here today, we believe

that we can achieve better environmental results by bring-

ing all perspectives to the table.

e f our professiona ls we bri ng you tod ay a re at the

heart of the ongoing eort to clearly a rticulate t he scope

of federa l jurisdic tion over water protection. It is a tough

issue, having made three high-prole trips to t he U.S.

Supreme Court, and we are a nxious to disc uss it. We’ll

start by asking agency representatives, Ken Kopo cis

from E PA and Craig Schmauder from the U.S. D epart-

ment of the Army, to provide an over view of t he rule.

en, Deidre Duncan from Hunton & Willia ms LLP

and Jon Devine from the Natu ral Resources Defense

Council will provide their thoughts from industry and

environme ntal per spectives.

To start, we have Ken Kopocis, Deputy Assistant

Administrator in the Oce of Water at EPA. Prior to join-

ing EPA, Ken held several senior positions on the stas

of both the U.S. House of Representatives Committee on

1. Clean Water Rule: Denition of Waters of the United States, 80 Fed. Reg.

37053 (June 29, 2015).

2. 33 U.S.C. §§1251-1387, ELR S. FWPCA §§101-607.

Copyright © 2015 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.