Ramifications of New USEPA
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Scott Doran's presentation discusses the complexities and challenges surrounding the new USEPA and Corps regulations defining jurisdictional waters, focusing on the Clean Water Rule proposed in June 2015 and its strong opposition. The document outlines Supreme Court decisions that have influenced jurisdictional definitions, the impacts of recent legal challenges, and significant changes in regulations concerning ephemeral streams and wetlands. It emphasizes the unpredictability of outcomes from ongoing legal disputes and advocates for improvements in the regulatory process.
Ramifications of New USEPA
- 1. z Ramifications of New USEPA Corps Regulations Defining of Jurisdictional Waters Presented by Scott Doran OTEC Conference October 27, 2015
- 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
- 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
- 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
- 23. z Can a JD be challenged?
- 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