Will the New Waters of the United States (WOTUS) Rule Float?

• Date: 01 October 2014

10-2014 NEWS & ANALYSIS 44 ELR 10857

D I A L O G U E

Will the New Waters of the United

States (WOTUS) Rule Float?

Summary

On April 21, 2014, the U.S. Environmental Protec-

tion Agency and U.S. Army Corps of Engineers jointly

released a proposed rule to clarify protection for streams

and wetlands under the Clean Water Act. Determin-

ing Clean Water Act jurisdiction over streams and wet-

lands has been mired in confusion following a series

of U.S. Supreme Court decisions. e agencies issued

the proposed rule in response to calls from judges,

lawmakers, government ocials, corporate represen-

tatives, environmentalists, and other stakeholders to

bring greater clarity. To address these concerns, the

Environmental Law Institute held a seminar, “Will

the New Waters of the United States (WOTUS) Rule

Float?,” on May 22, 2014, to bring together a range

of perspectives on this controversial topic. Below, we

present a transcript of the event, which has been edited

for style, clarity, and space considerations.

Bruce Myers (moderator) is Senior Attorney at t he Envi-

ronmental Law Institute.

Ken Kopocis is Deputy Assistant Ad ministrator for the

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

Agency.

Lance Wood is Assistant Chief Counsel for Environmen-

tal Laws and Regulatory Programs at the U.S. Army Corps

of Engineers.

Deidre Du ncan is a par tner at Hunton & Williams law

rm.

Jan Goldman-Carter is Wetlands and Water Resources

Counsel at the National Wildlife Federation.

Bruce Myers: a nks ever ybody for bei ng here and for

being on the phone. I’ll be moderating our aair today.

is should be a terric conversation. I t hink there’ ll

be a lot of energ y and information here. We’ve got four

terric panelist s here in person in Washing ton, D.C.

We have Ken Kopocis from the U.S. Environmental

Protection Ag ency (EPA). We’ve got Lance Wood from

the U.S. Army Corps of Engineers (the Corps). Deid re

Dunca n is joining us from Hunton & Williams, and last

but not least, Jan Goldman- Carter from the National

Wildli fe Federation.

We have a joint proposed ru le1 from two agencies and

we’ve got a great opportunity to hear something from each

of these agencies. I know there are lots of Clean Water Act

(CWA)2 experts in the room and on t he phone, so I think

it is safe to assume everyone has read in detail the proposed

rule and the hefty healthy prea mble. Nevertheless, for the

one or two of you who have not done that, we’re going to

hear a lot of good context and stage-setting, especially at

the beginning of this c onversation today.

What we are talking about today is a threshold legal

question. e question is whether, in any given instance

with respect to any given wetland or stream, the CWA

applies or the CWA does not apply. Is there what we call

CWA jurisdiction? at’s the phrase you’d hear. is really

is the rst question before you get to anything about what

the CWA does or whether you can develop or not develop

or do anything else. e threshold question is whether the

Act applies. If you think it is interesting or even surprising

that over four decades since the passage of the Act in 1972

we still are addressing that question, you’re probably right

about that. It’s one of the things that makes it fascinating.

We are now going to begin with Ken and Lance, who

will set t he stage for us and talk a bit about what the pro-

posed rule would do and would not do. en we’re going

to move to Deidre and Jan, who will give us stakeholder

perspectives on what they’ve seen so far with the proposed

rule.

I. Agency Perspectives

Ken Kopocis: is is a very critical issue for the CWA

and the administration of the Act and how it is that we

go about fullling the CWA’s objectives of restoring and

maintaining the chemical, physical, and biological integ-

rity of the nation’s waters.

I want to thank my colleagues on the panel. I know that

while we may not all agree on what the outcome should be

on our proposed rulemaking, I think that we can all agree

that there is great conf usion among both the regulated

public and t he regulators themselves, and that there have

been broad, bipartisa n calls for the agencies to conduct

this rulemak ing that we [EPA] have initiated.

1. Denition of Waters of the United States, 79 Fed. Reg. 22187 (proposed

Apr. 21, 2014).

2. Clean Water Act (CWA), 33 U.S.C. §§1251-1387, ELR S. FWPCA

§§101-607.

Copyright © 2014 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.