"Ramifications of New USEPA" was presented by Scott Doran on October 27, 2015, at the OTEC Conference. The presentation discussed the corps regulations defining of jurisdictional water.

1. z
Ramifications of New USEPA
Corps Regulations Defining of Jurisdictional Waters
Presented by Scott Doran
OTEC Conference
October 27, 2015

2. z
IT’S A MESS!

3. z
Reach of Federal Jurisdiction

4. z
Ill-defined statutory
definition of Waters
of the United States

5. z
Regularly Challenged
3 Supreme Court Decisions
+ Riverside Bayview Homes (1985)
+ SWANCC (2001)
+ Rapanos (2006)

6. z
Rapanos
Decision
Justice Kennedy provided deciding vote +
established the “significant nexus” test
Does the aquatic resource have a significant nexus
with downstream water quality?
Justice Roberts suggested a formal regulatory definition

7. z
USEPA/Corps proposed
The Clean Water Rule
June 2015
1M+
comments
Proposed
4/14
USEPA
response
10,000
pages

8. z
USEPA/Corps proposed
The Clean Water Rule
June 2015
1M+
comments
Proposed
4/14
USEPA
response
10,000
pages
Effective
Aug. 28
2
pages of
Federal
Register
Preamble
70pages

9. z
Rule
Immediately
Challenged
Exceeds federal authority
Substantial differences between
proposed + final rules
North Dakota District Court
stayed effect of rule in 13 states

10. z
Challenged by
Environmental
Groups
Arbitrary restrictions
on jurisdiction
Failure to protect
endangered species
Failure to protect
watersheds

11. z
Ohio AG
Challenge

12. z
6th Circuit stays
effect of rule
nationwide
October 9, 2015

13. z
Outcome of Challenges
Unpredictable
+ Science Advisory Board Report (October 2014)
+ USEPA “Connectivity of Stream + Wetlands to
Downstream Waters” Report (January 2015)
+ Lengthy technical document summarizing state of the
science
+ Both reports strongly support broad jurisdiction to
protect water quality

14. z
Impact in
Ohio

15. z
Corps historically regulated “streams” with
bed, bank + high water mark
Corps regulated wetlands with minimal
nexus to streams + water quality
Other areas of United States will be affected
Maybe not much

16. z
Biggest Changes
Ephemeral “Streams”
unquestionably
jurisdictional

17. z
Biggest Changes
Wetlands in 100 year
floodplain considered
adjacent/neighboring

18. z
Biggest Changes
Isolated wetlands
farther than 4,000 ft.
from stream
categorically excluded

19. z
EXCLUSIONS

20. z
Man-made ditches
constructed in uplands
Erosional features
Groundwater
Storm water controls
constructed in uplands

21. z
Man-made ditches
constructed in uplands
Erosional features
Groundwater
Storm water controls
constructed in uplands

22. z
But that’s not
jurisdictional!

23. z
Can a JD be
challenged?

24. z
Belle
Decision
No judicial review

25. z
Hawke
Decision
Immediate
judicial review

26. z
U.S. Supreme
Court Review

27. z
U.S. Supreme
Court Review
United States requested the court to consider Hawkes decision
Issue – does a JD constitute “final agency action” which
alters owners’ legal obligations?
Permit required with or without JD; JD does not require action

28. z
Scope of jurisdiction is not
the problem
Need to streamline Section
404 program
Provide Corps with adequate
resources
Establish meaningful
permitting deadlines
My
Soapbox
Encourage use of mitigation
banks + in-lieu fee options

29. z
Thank You!
Scott Doran
Director, Kegler Brown Hill + Ritter
sdoran@keglerbrown.com
keglerbrown.com/doran
614-462-5412