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Planning for the New(est) Definition of Waters of the United States (WOTUS)

OnDemand Webinar (87 minutes)

Understand the steps you should take so you can be prepared for potential changes in status.

Receive current and up-to-date information on the status of the controversial 2015 Waters of the United States definition (Clean Water Act), the similarities and differences between the 2007 and 2015 definitions. Learn how the Corps is defining and reviewing significant nexus for otherwise isolated waters under both programs. You will be made aware of the proactive steps you should take to prepare your clients and projects for potential change in status.

Authors

Terresa M. Bakner, Esq., Whiteman Osterman & Hanna LLP
Barbara B. Beall, PWS, LEED? AP, The Chazen Companies

Agenda

Current (2007) Definition of WOTUS

• Traditional Navigable Waters (Section 10 Rivers and Harbors Act)

• Waters of United States (Section 404 Clean Water Act (33 CFR 238.3(a))

Overview - How Did We Get "Back" Here

• USEPA/US ACOE Commerce Connection Criteria (ca. 1986)

• Wilson (133 F. 3d 251) (4th Cir. 1997))

• SWANCC (531 U.S. 159) (2001) and Rapanos and Carabell (547 U.S. 751) (2006)

• USEPA/U.S. Army Corps of Engineers Guidance 5/30/2007

Proposed 2015 WOTUS Regulations

• 2015 WOTUS Regulations Public Notice Time Frame (April 21, 2014 - October 21, 2015)

• Stream Connectivity Study

• Content of the 2015 Regulations in Public Notice

• Effective Timeframe of 2015 WOTUS Regulations (June 2015, Effective August 2015)

• National Stay on Decision 6th Circuit Court (October 2016)

Compare/Contrast 2007 Definition With 2015 Public Notice and Final Definition

• Waters Automatically Regulated vs. Those Regulated by Significant Nexus

• Features Not Regulated

• Definitions

Documenting "Significant Nexus" (or Lack Thereof) for Otherwise "Isolated" Waters

• Typical Corps Documentation Requirements for Wetland Delineations

• Typical Documentation Requirements for "Significant Nexus"

Current Activity in Courts, Congress, Elsewhere

• 6th Circuit Court Hearing/Decision on Federal Clean Water Act Rule

• Congressional Void of CWA Regulations/Presidential Veto

How to Prepare for Possible Changes in WOTUS Definition