On March 25, 2014, EPA and the Corps of Engineers issued a proposed rule defining "waters of the United States" under the Clean Water Act. The rule was published in the Federal Register on April 21, 2014. The proposed rule will apply to all CWA programs and significantly increases EPA's and the Corps' jurisdiction under the CWA. If the rule is adopted as proposed, the rule will impact most industries and municipalities.

1. Redefining Waters of
the U.S.
IMA-NAAnnual Meeting
Jackson Lake Lodge
September 10, 2014
Steven G. Jones
801.799.5828; 206.356.3360
sgjones@hollandhart.com

2. Important Information
This presentation is similar to any other seminar designed to
provide general information on pertinent legal topics. The
statements made and any materials distributed as part of this
presentation are provided for educational purposes only. They do
not constitute legal advice nor do they necessarily reflect the
views of Holland & Hart LLP or any of its attorneys other than the
speakers. This presentation is not intended to create an attorney-
client relationship between you and Holland & Hart LLP. If you
have specific questions as to the application of the law to your
activities, you should seek the advice of your legal counsel.
All Presentations and Other Materials © Holland & Hart LLP 2014

3. Factual Background
• On March 25, 2014, EPA and the Corps of Engineers
issued a proposed rule defining “waters of the United
States” under the Clean Water Act (CWA)
• The rule was published
in the Federal Register on
April 21, 2014
© Holland & Hart LLP 2014 3

4. Legal Background
• The proposed rule will apply to all CWA programs:
– NPDES program (Section 402)
– Dredge and fill permitting programs (Section 404)
– Spill prevention program (Section 311); and
– State certification processes (Section 401)
© Holland & Hart LLP 2014 4

5. Legal Background (cont’d)
• The proposed rule significantly increases EPA’s and
the Corps’ jurisdiction under the CWA
• If adopted as proposed, the rule will impact most
industries and municipalities – in fact, everyone
owning or using lands where water is present
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6. Comment Deadline
• The deadline for comments has been extended
from July 21, 2014 (90 days from publication) to
October 20, 2014
• It is likely that the comment process will be very
important in shaping the final rule and subsequent
litigation
© Holland & Hart LLP 2014 6

7. The Existing Law
• United States v. Riverside Bayview Homes
(1985)
– Unanimous S. Ct. extends CWA jurisdiction to
navigable waters
• Solid Waste Agency of Northern Cook County
(SWANCC) v. Corps of Engineers (2001)
– 5-4 S. Ct. holds that jurisdiction does not extend to
isolated wetlands, requiring a “significant nexus”
navigable waters
© Holland & Hart LLP 2014 7

8. The Existing Law (cont’d)
• Rapanos v. United States
(2006)
– 4 vote majority (Scalia) requires
flowing or standing water for CWA
jurisdiction
– This excludes many areas that
dry, but which meet the definition of
wetlands
– Deciding 5th vote came from Justice
Kennedy, who required a
nexus” between waterways and
wetlands for CWA jurisdiction
© Holland & Hart LLP 2014 8

9. EPA’s Response(s)
• The S. Ct. has repeatedly urged EPA and the
Corps to initiate formal rulemaking
• EPA issued guidance in 2003, 2007-08 and in
2011 (draft)
• In 2013, the 2011 guidance was withdrawn and
the current rulemaking initiated
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10. The Newly Proposed Rule
• What is the definition of a “water of the U.S.”?
– Tributaries?
– Adjacent waters?
– Other waters?
© Holland & Hart LLP 2014 10

11. If it’s Wet, it’s a WOTUS
• Per se jurisdictional
– All traditionally navigable and interstate waters
– All impoundments of such waters
– All tributaries of such waters
– All adjacent waters, including wetlands and tributaries
© Holland & Hart LLP 2014 11

12. Wet = WOTUS (cont’d)
• Case by case review
– All other waters
– Other waters if “alone or in
combination with similarly
situated waters” there is a
“significant nexus” to
traditionally navigable
waters
© Holland & Hart LLP 2014 12

13. What is Excluded?
• EPA claims that the proposed
rule is narrower than existing
regulations
– Tributary = any feature with bed,
bank and ordinary high water
mark that “contributes flow.”
– Quantity, frequency and duration
don’t matter; intermittent streams
fall within the definition.
© Holland & Hart LLP 2014 13

14. What is a “Significant Nexus?”
• The rule does not define “nexus”
– Waters fall within the term if they “significantly affect the
chemical, physical or biological integrity of navigable or
interstate water”
– “Significant” means “more than speculative or
insubstantial”
© Holland & Hart LLP 2014 14

15. Interstate and Navigable
Waters
• By referencing “interstate” waters in addition to navigable
waters, non-navigable waters could form a basis for CWA
jurisdiction
© Holland & Hart LLP 2014 15

16. Looking Ahead
• Compliance impacts
– Section 404 permits
– Stormwater permits
– Section 311 permits
– State water quality
certifications
© Holland & Hart LLP 2014 16

17. Looking Ahead (cont’d)
• Issues likely to generate litigation
– intermittent and ephemeral
tributaries
– adjacency
– what are “other waters”
– what are “similarly situated waters”
– what constitutes a “significant
nexus”
© Holland & Hart LLP 2014 17

18. Looking Ahead (cont’d)
• Costs and risks of the
new rule
– delays in case-by-case
jurisdictional
determinations
– potential for jurisdiction to
be determined by citizens
suit
– potential facial and as-
applied challenges
© Holland & Hart LLP 2014 18

19. For More Information
Steven G. Jones
Holland & Hart LLP
801.799.5828; 206.356.3360
sgjones@hollandhart.com