EPA/US Army Corps of Engineers’ Final Rule: Revised Definition of “Waters of the United States” January 30, 2023 11:00 AM (PT) | 2:00 PM (ET)
About
On 18 January 2023 the United States Army Corps of Engineers’ and the Environmental Protection Agency’s Revised Definition of “Waters of the United States” was published in Federal Register Vol. 88, No. 11. The Final Rule, which defines what waters are protected by/subject to the Clean Water Act (CWA), becomes effective nationally on 20 March 2023. As stated in the summary: In developing this rule, the agencies considered the text of the relevant provisions of the Clean Water Act and the statute as a whole, the scientific record, relevant Supreme Court case law, and the agencies’ experience and technical expertise after more than 45 years of implementing the longstanding pre-2015 regulations defining “waters of the United States.”
As previously announced, NAEP has been awaiting the formal publication of the Final Rule since fall 2022 and, as planned, will now host a webinar led by a panel of experts that will provide an informative and concise summary of the WOTUS definition’s technical, legal, and regulatory history. More importantly, they will analyze and discuss both the technical differences between the Final Rule and the current, pre-2015 WOTUS definition and the impact on the regulated community that is likely to result. The Final Rule’s effect on the natural resource the CWA was created to protect will also be considered, along with the potential impacts of the SCOTUS’ Sackett v. EPA opinion, which is anticipated to be delivered this spring.
NAEP has selected three expert panelists to summarize the Final Rule’s meaning, from the perspectives of the updated WOTUS’ technical definition, its changes to federal regulatory oversight, as well as the likely litigative entanglements that are certain to quickly follow.
The panelists will provide their insight, which has evolved from decades of wide-ranging professional WOTUS experience. Collectively, on behalf of the public, private and regulatory sectors, they have mapped and documented the location and extent of WOTUS in the field, permitted WOTUS impacts in the office, and litigated disputed interpretations of both in the courtroom for over half a century. While the initial portion of the webinar will be a Final Rule summary, the latter portion will be an open discussion, with registrant participation not only encouraged, but expected.
Please join NAEP for this timely and informative event, focused on how the soon-to-be-implemented changes to one of the United States’ most significant environmental regulations may impact the nation.
Panelists
Ward Marotti Director: Land and Water Resources Spangler Environmental, Inc.
Ward Marotti has been involved in the successful implementation and management of ecological restoration project planning, design, implementation, oversight, and monitoring for over 30 years. In addition to Ward’s extensive natural resource assessment and restoration experience, he has completed hundreds of public and private environmental compliance and permitting projects, including Clean Water Act 404/401 Individual and Nationwide permitting, NEPA and SEPA EAs and EISs, water quality and riparian buffer variances, Endangered Species Act Section 7 and 10 impact permits and conservation plans, protected species relocation plans, and watershed use re-classifications. Ward is the Past President of the National Association of Environmental Professionals’ North Carolina Chapter. He currently serves on the newly affiliated South Carolina Chapter’s inaugural board as its representative on NAEP’s national Board of Directors. In January 2023 Ward was elected as an at-large member of NAEP’s national Board of Directors.
Peter McGrath Member Moore&VanAllen
Peter provides environmental counsel to clients across a broad spectrum of industries. He advises lenders, real estate developers, property managers, manufacturers, landfill operators, renewable energy developers, lenders and investors, and life sciences companies. He also helps clients comply with environmental law, providing regulatory advice in a wide variety of substantive areas, including solid and hazardous waste, coal ash management, stormwater and wastewater water discharges, air emissions, wetlands, chemical regulation, environmental remediation, and occupational safety and health.
Peter has successfully managed the environmental aspects of hundreds of corporate, financing, and real estate transactions, working in conjunction with other practice areas within the firm. That management includes conducting and coordinating environmental due diligence for target companies and properties, retaining and managing environmental consultants to investigate and quantify known and potential liabilities, counseling clients on environmental liabilities and risk allocation, drafting and negotiating the environmental provisions of transaction documents, assisting in the procurement of environmental insurance and other risk-mitigating solutions, and managing the post-closing resolution of environmental issues. Peter also advises real estate developers through all aspects of North Carolina’s brownfields redevelopment program, from application and assessment, through negotiation of the documents required for the program, to public notice and recording, and post-development tax benefits.
Carland Holstead, PWS Senior Environmental Practice Builder Kimley-Horn
Carland brings 12 years of professional regulatory agency and consulting experience in natural resources accompanied by a broad educational background that has included the study of marine biology, environmental planning and policy, coastal resilience and sustainability as well as natural resources management. Carland performs and provides expertise in wetland determinations/delineations, threatened and endangered species compliance assessments, and associated federal and local permitting. He provides expertise in writing and reviewing technical reports pursuant to NEPA including CEs, EAs, and EISs for a wide variety of agencies. He also writes reports and prepares appropriate permitting documentation pursuant to the Clean Water Act (CWA) and the Rivers and Harbors Act. He prepares compensatory mitigation plans and USACE Section 404/Section 10 Permits.
Prior to joining Kimley-Horn, Carland gained experience working directly for the Regulatory Branch of the USACE. During his tenure, he evaluated Section 404 and Section 10 permit applications for impacts to Waters of the U.S. (WOUS). He also performed jurisdictional determinations, significant nexus evaluations, verified wetland delineations, and assisted with special projects and external outreach. Prior to working for the USACE, Carland worked for the National Oceanic and Atmospheric Administration as a Biological Technician and Rigs-to-Reef Program Monitor in the Gulf of Mexico. Carland has provided services to private industry and public sector clients both locally and throughout the nation.
The Supreme Court Ruling in the Sackett ‘Waters of the United States’ Case June 12, 2023 12:00 PM (PT) | 3:00 PM (ET)
About
In addition to the codified changes to the definition of Waters of the United States, the Supreme Court has agreed to review Sackett v. EPA, which seeks to resolve the dispute of how wetlands should be handled under the Clean Water Act. This topic will focus on the Supreme Court’s decision in Sackett v. EPA.
Panelists
Jay C Johnson Partner Venable
Jay C Johnson serves clients in a variety of infrastructure and natural resource contexts, guiding them past regulatory and environmental review obstacles to win agency approvals, then defending those approvals in court. Jay focuses on projects that raise complex issues, attracting scrutiny from both regulators and third-party groups. His recent representations include mining, rail and surface transportation, and port projects.
Jay has experience with a variety of state and federal environmental laws, including the National Environmental Policy Act, the Clean Water Act, the National Historic Preservation Act, and their state analogues. He has also helped his clients win approvals under the numerous substantive federal statutes employed by federal agencies like the Surface Transportation Board (STB), the Federal Highway Administration (FHWA), the U.S. Forest Service (USFS), the Bureau of Land Management (BLM), the Environmental Protection Agency (EPA), and the U.S. Army Corps of Engineers (USACE).
Cheryl Feigum Vice President and Senior Environmental Scientist Barr Engineering
Cheryl has nearly two decades of experience as a wetland and soil scientist specializing in wetland delineation and functional assessment, wetland hydrology studies, natural resources inventory and management, and environmental review and permitting. She has worked for a wide range of clients including municipalities, state agencies, industrial companies, residential and commercial developers, engineering and architectural firms, and private landowners. Cheryl has managed routing permitting for the construction of transmission lines and has coordinated natural resources studies for mining projects in northern Minnesota.
NEPA in the Fiscal Responsibility Act June 22, 2023 12:00 PM (PT) | 3:00 PM (ET)
About
In recent sessions of Congress, there have been many attempts to reform NEPA and related environmental permitting processes. These attempts were largely unsuccessful until much of the previously introduced Building United States Infrastructure through Limited Delays and Efficient Reviews (BUILDER) Act of 2023 was incorporated into the Fiscal Responsibility Act of 2023 which was passed by Congress and became law in early June. The Builder Act (Section 321 of the Fiscal Responsibility Act) makes the first substantive amendments to NEPA since NEPA was enacted in 1970. While many of the changes are drawn from the 2020 CEQ NEPA implementing regulations, there are important differences. This webinar will focus on the amendments to NEPA.
The original topic for this webinar was the CEQ’s proposed Phase II NEPA regulations. Because the timing of CEQ’s issuance of any proposed Phase II regulations is now even more uncertain due to the new amendments to the act, this webinar will now focus on the amendments.
Panelists
Charles (Chuck) Nicholson, NAEP Elected At-Large Board Member Senior Environmental Planner/Scientist HDR
Dr. Nicholson has been a NAEP Member for over 10 years and is an elected NAEP Board Member and chair of the NEPA Practice Group. Chuck has 43 years of professional experience in the environmental and natural resources fields and 23 years as a NEPA compliance specialist. He has extensive experience in the preparation of EIS, EA, and CE documentation for a wide range of actions. Chuck earned his Ph.D. in Ecology & Evolutionary Biology from the University of Tennessee, Knoxville in 2004, an MS in Wildlife Management from the University of Maine in 1978, and a BS in Wildlife and Fisheries from the University of Tennessee, Knoxville in 1975.
Fred Wagner, NAEP Elected At-Large Board Member Partner Venable LLP
Fred Wager focuses on environmental and natural resource issues, associated with major infrastructure, mining, and energy project development. Fred was appointed chief counsel of the U.S. Federal Highway Administration (FHWA) during the Obama administration. Fred began his career as a trial attorney in the Environment Division of the U.S. Department of Justice. He also served as a special assistant U.S. attorney in the Misdemeanor Trial Section of the U.S. Attorney's Office for the District of Columbia. Prior to joining Venable, he spent more than 20 years in private practice at a national law firm focusing on environmental and natural resources issues.
Michelle Rau is a Senior Project Manager and leads the NEPA Community of Practice Lead for Jacobs Engineering. She served as both the project manager and the NEPA lead for the NASA Radioisotope Heater Unit Programmatic Environmental Assessment.
Ted Boling Partner Perkins Coie LLP
Edward (Ted) Boling served as the country’s top National Environmental Policy Act (NEPA) attorney as counsel and an associate director at the Council on Environmental Quality (CEQ) in the Executive Office of the President. Ted served at CEQ, the U.S. Department of the Interior (DOI), and the U.S. Department of Justice (DOJ) in Democratic and Republican administrations. His experience includes deep involvement in federal infrastructure permitting issues and the first comprehensive revision of CEQ’sNEPA regulations in 40 years. Drawing on over 30 years of high-level public service, Ted currently advises leaders on infrastructure development projects, agencies that must hire outside counsel, and the environmental professionals that support them on the development of renewable energy, resource development, transportation, and transmission infrastructure.
David Brewster Senior Environmental Manager Universal Engineering Sciences (UES)
David has over 20 years of professional experience in the environmental investigation, remediation, and compliance fields. He has 13 years preparing NEPA documentation as author and technical reviewer. He leads the UES NEPA practice team and has performed extensive work for Department of Defense and private company clients with regulatory compliance and permitting throughout the United States. David is a Board-Certified Environmental Professional and a member of the NAEP.
Ethics and Technology for Environmental Professionals
December 15, 2022 9:00 AM (PT) | 12:00 PM (ET)
Speakers
Timothy J. Perry, Shareholder, Gardner, Bist, Bowden, Dee, LaVia, Wright, Perry & Harper, P.A Joseph Ullo, Shareholder,Carlton Fields Kathryn B. Rossmell, Attorney, Lewis, Longman, and Walker
About
Join us for a webinar on ethics and technology for the environmental professional! This presentation will start with a discussion of the various ethical requirements for attorneys, engineers, planners, and NAEP Members. This will be followed by a discussion about how those ethical requirements interplay with the increasing use of technology, including how to use technology to maintain privacy and ethical requirements. The webinar will finish with a discussion of practical pointers on how to make the most efficient and effective use of the various tools and technologies professionals have come to rely on.
P.E. "Pam" Hudson, Esq., NAVFAC SW, Department of the Navy Office of General Counsel Michael Smith, Ph.D.,National Practice Leader, Environmental Process and Policy, WSP USA
Moderator
Fred Wagner, NAEP Elected At-Large Board Member, Partner, Venable LLP
About
This webinar mirrors the Case Law presentation provided during the NAEP 2022 Conference & Training Symposium, with updates as warranted. The webinar panel is based on a paper that reviews substantive National Environmental Policy Act (NEPA) cases issued by the United States Courts of Appeals in 2021. The implications of the decisions and their relevance to NEPA practitioners will be explained. This webinar will summarize the more detailed paper prepared for the 2022 Conference session.
The paper briefly explains, with an emphasis on the substantive NEPA findings, each opinion issued by the U.S. Court of Appeals. The paper identifies statistics regarding the NEPA appellate opinions, such as a thirteen-year record of NEPA cases, organized by circuit, and by year. The paper also identifies the agencies involved in each case and presents statistics relevant to the agencies; the paper further identifies the prevailing ratio of federal agencies, including by agency and by document type (categorical exclusion, environmental assessment, environmental impact statement). The paper analyzes the trends in the court opinions involving NEPA for 2021, with an emphasis on substantive NEPA practice, and by grouping of the cases.
Finally, each court opinion is paraphrased and organized in a manner easy to read for practitioners to find the court’s ruling. Appellate opinions are grouped and analyzed by agency. Past trends include challenges to purpose and need, alternatives considered, public comment, scientific impact assessment methodologies, GHG emissions and climate change impact assessment, incomplete or unavailable information, determination of significance, segmentation, duty to supplement, connected actions, federal actions, cumulative impact assessment, mitigation, monitoring, and adaptive management.
Waters of the United States Definition Evolution: Meandering Riffles, Pools, and Runs
August 31, 2022 9:00 AM (PT) | 12:00 PM (ET)
Speakers
Jeremy Kinney |South Carolina Department of Transportation Liaison | Special Projects Branch of the U.S. Army Corps of Engineers James Choate | Deputy District Counsel | U.S. Army Corps of Engineers Leif Palmer | Regional Counsel | Office of Region Counsel - EPA Region 4 Mary Katherine Stukes |Head of Environmental Practice | Moore & Van Allen
Moderator
Ward Marotti |Director: Land and Water Resources | Spangler Environmental, Inc.
About
Since the U.S. Supreme Court’s unanimous 1985 Riverside Bayview Homesv.US decision expanded the definition of “waters of the United States” (WOTUS) to include more than just the nation’s “navigable waters,” debate on what should be considered a WOTUS has continued and, through much of this time, been complex and heated (e.g., SWANCC v. US (2001), Rapanos & Carabell v. US (2006)). For more than a decade following Rapanos, the WOTUS definition has been based on the significant nexus test, as defined by Justice Kennedy’s plurality opinion.
Some viewed the Obama Administration’s 2015 Clean Water Rule’s expansion of the WOTUS definition as an “executive over-reach.” Opposition to the 2015 Rule was swift. Multiple federal courts enjoined the 2015 Rule, and after former President Trump’s 2017 Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule, the 2015 Rule was repealed. The pre-2015 WOTUS definition was re-codified in 2019. The Trump Administration’s Navigable Waters Protection Rule (NWPR), which re-defined WOTUS, became effective in June 2020. In August 2021, the U.S. District Court for the District of Arizona remanded and vacated the NWPR nationally. The most recently proposed Revised Definition of “Waters of the United States” was published in the 7 December 2021 Federal Register. After receipt of public comments and hosting virtual public hearings, the final rule is expected to be published by the end of 2022. On a related front, the U.S. Supreme Court is scheduled to hear the Sackett v. Environmental Protection Agency case’s oral argument in October 2022. The U.S. Supreme Court’s future decision in the latest Sackett case may have a significant bearing on how WOTUS is defined.
Join the U.S. Environmental Protection Agency Region 4’s Regional Council, the USACE Charleston District’s Deputy District Council, a USACE Charleston District Regulatory Project Manager, a private practice environmental attorney, and a private environmental consultant to hear a summary of the WOTUS definition’s meandering flow path, its real-world results, as well as prognostications of its next riffle.
