Waters of the United States WOTUS Stan Millan

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Waters of the United States (WOTUS) Stan Millan Special Counsel Featuring: Brad Finney (Judicial

Waters of the United States (WOTUS) Stan Millan Special Counsel Featuring: Brad Finney (Judicial Law Clerk) © 2019 Jones Walker LLP Elise Henry Associate January 24, 2020 © 2019 Jones Walker LLP joneswalker. com

Clean Water Act (CWA) • Overview (Brad) • History • NPDES, Oil Spills, Wetlands,

Clean Water Act (CWA) • Overview (Brad) • History • NPDES, Oil Spills, Wetlands, Water Quality, etc. • Illustrative Case: County of Maui, HI v. Hawaii Wildlife Fund, Case No. 18 -260 (U. S. Cert granted 2/19/19) © 2019 Jones Walker LLP joneswalker. com | 2

Waters of the United States (WOTUS) Case History (Elise) • In the beginning of

Waters of the United States (WOTUS) Case History (Elise) • In the beginning of federal wetland law, all was simpler (mid 1970’s). • Agency focus was on truly aquatic areas, characterized by flooding, wet vegetation, and hydric soils. See U. S. v. Fleming Plantations, 12 ERC (BNA) 1705 (E. D. La. 1978). • The early wetland regulations phased in jurisdiction from 1975 to wetlands adjacent to navigable waters and in 1977 to include all waters of the U. S. including wetlands. 33 C. F. R. § 330. 3 • Agencies (e. g. , Corps of Engineers) then looked at wetlands like God sees the landscape. All was connected naturally. © 2019 Jones Walker LLP joneswalker. com | 3

Waters of the United States (WOTUS) • Then easily came Riverside Bayview Homes, 474

Waters of the United States (WOTUS) • Then easily came Riverside Bayview Homes, 474 U. S. 121 (1985), which held regardless of elevation, a higher plained wetland physically continuous with a navigable lake was regulated by the CWA. Later cases described this adjacency or abutment as the “significant nexus” which connected the two. • The struggle between how far could agencies go, bending space between a wetland a navigable water, miles distance and connected only by a drainage or roadway ditch. • Then came the more restrictive SWANCC case, 531 U. S. 159 (2001), which held under the Commerce Clause isolated waters were not regulated under the CWA. Then, more connections needed to be found between a wetland a navigable waterway. Ditches became the trick. © 2019 Jones Walker LLP joneswalker. com | 4

Waters of the United States (WOTUS) • Rapanos v. U. S. case, 129 S.

Waters of the United States (WOTUS) • Rapanos v. U. S. case, 129 S. Ct. 116 (2006), created a new interpretation for waters of the United States in Corps of Engineers or EPA regulating wetlands development on private lands. 1. Scalia Plurality – jurisdiction over wetland connected with relatively permanent, seasonal or perennial flowing waters to navigable river, not just ephemeral flow during inundation 2. Kennedy Concurring – created a vague “significant nexus” ecological, hydrological and pollutant test between the wetland navigable river perhaps miles apart. © 2019 Jones Walker LLP joneswalker. com | 5

Waters of the United States (WOTUS) Rules and Guidance (Stan) • EPA/Corps Guidance (2007

Waters of the United States (WOTUS) Rules and Guidance (Stan) • EPA/Corps Guidance (2007 -2008) adopted both approaches, but not in a rule • Obama WOTUS rule arguably broadened guidance in 2015, 33 C. F. R. 328, 40 C. F. R. 230. 3, 80 F. R. 31, 054 • 2015 WOTUS ruled stayed nationwide by Sixth Circuit in EPA v. State of Ohio (October 9, 2015). Before the United States Supreme Court in National Association of Manufacturers (“NAM”) v. DOD, No. 16 -299. This is an issue of appellate court original and exclusive jurisdiction only, not regulatory jurisdiction. The Supreme Court reversed and remanded the 6 th Circuit’s ruling on January 22, 2018, and effectively bounced the WOTUS rule back to district courts. 138 S. Ct. 617 (2018) © 2019 Jones Walker LLP joneswalker. com | 6

Waters of the United States (WOTUS) © 2019 Jones Walker LLP joneswalker. com |

Waters of the United States (WOTUS) © 2019 Jones Walker LLP joneswalker. com | 7

Waters of the United States (WOTUS) Trump administration • Proposes to suspend, rescind and

Waters of the United States (WOTUS) Trump administration • Proposes to suspend, rescind and revise the WOTUS rule • Then delay the 2015 WOTUS for two years (2020) pending a new WOTUS rule. A new lawsuit by a dozen states is already at the delayed effective date of 2020. • Proposed on February 14, 2019. A new WOTUS rule favoring Scalia’s interpretation. See diagram. • Repeal of 2015 rule. 84 Fed. Reg. 56626 (Oct. 22, 2019). Did not rescind Rapanos guidance. E. O. 13891 (Oct. 2019) possibly did, i. e. , no enforcement of agency guidance without formal rulemaking. • Possible legislative fix? © 2019 Jones Walker LLP joneswalker. com | 8

Waters of the United States (WOTUS) © 2019 Jones Walker LLP joneswalker. com |

Waters of the United States (WOTUS) © 2019 Jones Walker LLP joneswalker. com | 9

Waters of the United States (WOTUS) • In the meantime, the prior 1986 rule

Waters of the United States (WOTUS) • In the meantime, the prior 1986 rule and 2007 -8 agency guidance, although it did use a “significant nexus” test for isolated wetlands, it did not specify tributary flow as necessary. Any old ditch (tributary? ) would do for the Corps to establish regulatory jurisdiction between a wetland navigable waterway. It may apply, pending a new WOTUS rule. • The Supreme Court’s decision in NAM caused a vacation of the nationwide stay of the 2015 WOTUS rule and re-opened the door to dozens of district court lawsuits. About half the nation was under the 2015 WOTUS rule, and the other half not (including TX, LA, etc. ). A mess until 2015 WOTUS rule was repealed in 2019. The 2015 WOTUS repeal is being challenged under the APA. South Carolina Coastal Conservation League v. EPA, U. S. D. C. , D. S. Carl. Case No. 2: 19 -cv-03006 -DCN. © 2019 Jones Walker LLP joneswalker. com | 10

Waters of the United States (WOTUS) • Wastewater treatment system, groundwater, artificial ponds or

Waters of the United States (WOTUS) • Wastewater treatment system, groundwater, artificial ponds or pools on dry land, ornamental waters on dry land, stormwater control features, water recycling structure, etc. are exempt under both WOTUS, Trump and Obama versions. © 2019 Jones Walker LLP joneswalker. com | 11

Waters of the United States (WOTUS) Process (Brad) • Corps Section 404 Clean Water

Waters of the United States (WOTUS) Process (Brad) • Corps Section 404 Clean Water Act regulations will continue to protect wetlands with red tape – public notice, public comment, NEPA studies, agency coordination, and most fearful – compensatory mitigation (e. g. , Rapid Assessment Methods, Charleston Method, etc. ) • Section 404 establishes a permit program to regulate the discharge of dredged or fill material into waters of the United States, including wetlands. • The basic premise of the program is that no discharge of dredged or fill material may be permitted if: (1) a practicable alternative exists that is less damaging to the aquatic environment or (2) the nation’s waters would be significantly degraded. © 2019 Jones Walker LLP joneswalker. com | 12

Waters of the United States (WOTUS) • An individual permit is required for potentially

Waters of the United States (WOTUS) • An individual permit is required for potentially significant impacts. • A general permit is suitable for most discharges that will have only minimal adverse effects. General permits are issued on a nationwide, regional, or state basis for particular categories of activities. • Regulatory jurisdiction and permit conditions may be administratively appealed by applicants; judicial review over final agency actions is available to projects opponents. © 2019 Jones Walker LLP joneswalker. com | 13

Waters of the United States (WOTUS) © 2019 Jones Walker LLP joneswalker. com |

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Waters of the United States (WOTUS) © 2019 Jones Walker LLP joneswalker. com |

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Thank you! Stan Millan Special Counsel smillan@joneswalker. com Elise Henry Associate ehenry@joneswalker. com ©

Thank you! Stan Millan Special Counsel smillan@joneswalker. com Elise Henry Associate ehenry@joneswalker. com © 2019 Jones Walker LLP joneswalker. com | 16