Clean Water Act Regulation Following Rapanos: Clear As Mud?

Wednesday, July 27, 2011
2:15 – 3:45pm Eastern
Hosted by The Horinko Group’s Water Division

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Overview

The Obama administration’s recently proposed joint EPA/Corps of Engineers rulemaking is an attempt to provide clarity in the post-Rapanos world of wetlands regulation. But will it provide certainty and stability for both the regulated and regulatory communities?

For over thirty years, the definition of “waters of the United States” was given broad interpretation as applied to federal jurisdiction under Clean Water Act. By regulation, it included “all waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide.” A long line of case law placed little restriction on the Constitutional extent of this definition.

That status quo was first eroded with the Supreme Court decision in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U. S. 159 (2001) (“SWANCC”), and then exploded in Rapanos v. United States, 547 U. S. 715 (2006) (“Rapanos”). In Rapanos, the Supreme Court was deeply divided regarding the jurisdiction of the Corps of Engineers under the Clean Water Act. In that decision, the nine justices issued five separate opinions: one plurality opinion, two concurring opinions, and two dissenting opinions, with no single opinion commanding a majority of the Court. This led Chief Justice John Roberts to predict, “It is unfortunate that no opinion commands a majority of the Court on precisely how to read Congress’ limits on the reach of the Clean Water Act. Lower courts and regulated entities will now have to feel their way on a case by case basis.” His words could not have been more prophetic.

The intervening five years since Rapanos have yielded several attempts at clarifying Clean Water Act jurisdiction and regulation. These attempts culminated in the April 27, 2011 release of “Draft Guidance on Identifying Waters Protected by the Clean Water Act,” jointly authored by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers. That document is currently on notice for a 60-day public comment period. The proposed guidance is an effort to clarify regulatory responsibility for small and ephemeral streams, waterbodies without a distinct surface connection to interstate waters or traditional navigable waters, and recognition that changes in chemical, physical and biological composition of waterways can have systemic consequences. The new guidance does not alter existing exemptions for normal agricultural, forestry and ranching practices under the Clean Water Act. The guidance excludes certain artificially irrigated areas, many agricultural and roadside ditches, and artificial lakes or ponds, including farm and stock ponds from regulation.

Hear from the Experts

The new guidance has already drawn criticism from some members of Congress and industry, who view it as overreaching, and members of environmental groups, who view it as not going far enough. This webinar will provide insight from both the regulated and regulatory communities on their views regarding the value of these new guidelines in providing regulatory clarity, predictability, consistency and transparency in the protection of our nation’s water quality.

Presenters

Panelists include a seasoned line-up of professionals:

  • Marianne Horinko (Moderator)
    President, The Horinko Group

    Ms. Marianne Horinko is the President of The Horinko Group (THG). Ms. Horinko’s expertise is in watershed-based approaches to cleanup and revitalization, corporate sustainability, and collaborative solutions to environmental progress through unique public-private partnerships. Prior to joining THG, she served as Assistant Administrator for the Office of Solid Waste and Emergency Response (OSWER) at the U.S. Environmental Protection Agency from 2001 to 2004, and Acting EPA Administrator in 2003. Following the events of September 11, Ms. Horinko served at EPA assisting in environmental cleanup activities at Ground Zero, the Pentagon, and the U.S. Capitol due to anthrax contamination. In 2003, she oversaw EPA’s response to the Columbia Space Shuttle Disaster.

    Ms. Horinko is an alumna of the University of Maryland, College Park (B.S. in analytical chemistry) and Georgetown University Law School (J.D.).

  • Beth Pitrolo
    Assistant District Counsel, U.S. Army Corps of Engineers, St. Louis District

    Ms. Beth Pitrolo is the Assistant District Counsel for the St. Louis District of the U. S. Army Corps of Engineers. She has been involved in a variety of environmental programs, including Hurricane Katrina remedial response at the Louisiana Recovery Field Office, Clean Water Act litigation and CERCLA cleanup activities associated with radioactive waste from the Manhattan Project, and is an instructor for the Visitor Assistance PROSPECT course. Ms. Pitrolo was previously an Assistant Attorney General in the Environmental Bureau of the Illinois Attorney General’s Office, where she litigated environmental enforcement and compliance actions brought at the request of various state agencies. She has also been employed as an attorney for a private law firm, managed her own environmental consulting firm in Australia, and worked for the federal government in land use management and regulation.

    Ms. Pitrolo received her Bachelor of Science degree in Forestry and Wildlife Management from West Virginia University, her Master of Science degree in Biological Sciences from Marshall University, and her Juris Doctor degree from the University of Houston.

  • David Evans
    Director, Wetlands Division, U.S. Environmental Protection Agency HQ

    Mr. David Evans has been the Director of the Wetlands Division of EP’s Office of Wetlands, Oceans, and Watersheds (OWOW) in Washington, DC since 2005. Prior to his work in the Wetlands Division, Mr. Evans was Acting Director of Assessment & Watershed Protection Division in OWOW. Beginning in 2002, Mr. Evans served in OSWER’s Office of Emergency Management (OEM) as Director of the Regulation and Policy Development Division. In 2004, he received the fourth bronze medal of his career for his work on the team that successfully resolved industry challenges to the Spill Prevention, Control, and Countermeasure rule. From October 1995 until December 2002, Mr. Evans served as Director of the State, Tribal, and Site Identification Center in OEM. From August 1991 through September 1995, he served as Director of the Program Development and Budget Staff in the Office of Program Management of OEM. Before this, Dave served as a water quality and construction grants analyst for the Office of Comptroller.

    Mr. Evans’s training includes a Master’s Degree in Urban Planning from University of Arizona, and a Bachelor’s Degree in Geography from the State University of New York.

  • Deidre Duncan
    Partner, Hunton & Williams

    Ms. Deidre Duncan represents clients exclusively on environmental, energy and administrative law, with an emphasis on permitting, compliance and litigation regarding the Clean Water Act (CWA), the Endangered Species Act (ESA), the National Environmental Policy Act (NEPA) and other environmental statutes. Her experience includes negotiating and obtaining permits for complicated energy and development projects, counseling clients on administrative rulemaking, internal investigations, policy and regulatory clarifications, and drafting federal and state legislation. Her clients come from many of the nation’s key economic sectors, and include development companies, oil and natural gas pipelines, electric utilities, agricultural interests, state and local agencies, and various trade associations. Prior to entering private practice, Ms. Duncan served as Assistant General Counsel of the Army at the Pentagon.

    Ms. Duncan received her law degree from University of Cincinnati College of Law in 1996 and graduated cum laude from Duke University in 1993. She was awarded a Meritorious Service Medal in 2000 and an Army Commendation Medal in 1999.

  • Jon Devine
    Senior Attorney, Water Program, Natural Resources Defense Council

    Mr. Jon Devine is a Senior Attorney and leads the Clean Water Solutions Team within NRDC’s Water Program. His work focuses on water quality and nutrient pollution in the Mississippi River Basin, the legal scope of the Clean Water Act and mountaintop removal mining and its impacts on bodies of water in Appalachia. Mr. Devine worked with NRDC’s health and environment program for four years. Before joining NRDC in 2001, Mr. Devine was an attorney-advisor in the Environmental Protection Agency’s Office of General Counsel. He was a law clerk for Phyllis Kravitch of the U.S. Court of Appeals for the Eleventh Circuit.

    Mr. Devine graduated from Bowdoin College in 1991 and then worked as an environmental specialist in the Maine Department of Environmental Protection. He received his law degree from the Georgetown University Law Center in 1996.

Join Us to Learn About

    • Current state of Clean Water Act regulation from the viewpoint of both the regulated and regulatory communities;

 

    • Overview of the impact of SWANCC and Rapanos on Clean Water Act jurisdiction;

 

    • Description and goals of the proposed joint USEPA-USACE rulemaking;

 

    • Perspective of the regulated community on the impact of jurisdictional uncertainty; and,

 

  • Future of Clean Water Act regulation from a non-governmental organization’s outlook.

Who Should Attend?

This webinar is intended for water resources professionals, state and federal regulators, industry, legal community, state and local community planners, and NGOs interested in the future of the Clean Water Act.

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