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How Will EPA’s New WOTUS Rule and Proposed Section 401 Rule Impact Clean Water Act Permitting?

February 18, 2020

Credit: 0 Credit Hours

 **Please note that pre-registration is now close for this program. On-site registration is available, please check in with our staff.
Please join us for a breakfast session with Environmental Protection Agency (EPA) General Counsel Matthew Leopold, as he briefs us on two major rulemakings under the Clean Water Act. 
On January 23, 2020, EPA and the Department of the Army (Army) finalized the Navigable Waters Protection Rule to define “Waters of the United States” (WOTUS) and thereby establish federal regulatory authority under the Clean Water Act. The Navigable Waters Protection Rule is the final product of the proposed rulemaking from December 2018. Mr. Leopold will discuss how the new final WOTUS rule streamlines the definition of jurisdictional waters, provides exclusions for water features that traditionally have not been regulated, and provides definitions for previously undefined terms.
Mr. Leopold will also discuss EPA’s proposed rule issued last year under Clean Water Act Section 401. Section 401 precludes a federal agency from issuing a permit for activity involving a discharge into waters of the United States unless the state where the discharge occurs issues a certification of compliance with state water quality requirements or waives the certification. A state, or authorized tribe, can deny certification if it determines the project will have a negative impact on water quality within its borders, even if the project would otherwise be approved by a federal regulator like the Federal Energy Regulatory Commission or the US Army Corps of Engineers. In recent years, state water quality certifications under Section 401 have become a focus for energy project opposition across the country. For example, New York has denied the 401 certification for several natural gas pipelines in recent years, and 401 challenges have impacted other types of infrastructure and energy development in other states.   In August 2019, the EPA unveiled a proposed rule to clarify state water quality certification procedures under Section 401 to allow for increased regulatory certainty in federal permitting for infrastructure and other development projects.  EPA Administrator Andrew Wheeler announced that the “proposal is intended to help ensure that states adhere to the statutory language and intent of Clean Water Act.”  EPA also issued guidance in June 2019 to clarify the implementation of Section 401 “to assist federal permitting agencies and states and tribes until the EPA promulgates a final rule updating its CWA Section 401 regulations." EPA's guidance addresses timelines for state/tribal action on Section 401 certifications; the appropriate scope of certification review and conditions; and information appropriately within the scope of certification reviews.
Please join us for a briefing and discussion of EPA’s new WOTUS rule and proposed changes to the 401 program, and what those changes may mean for states, tribes and project applicants.
Pre-registration for this program is encouraged. As always, please feel free to share this invitation with colleagues. D.C. Bar membership is not required to attend. Food is available on a first-come, first-served basis. Doors open at 8:00 am. Program content starts at 8:30 am.
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Sponsored by: Energy Committee, Indian Law Committee and Water Quality and Water Resources Committee of the D.C. Bar Environment, Energy and Natural Resources Community
Related Community of Interest: D.C. Bar Administrative Law and Agency Practice Community; D.C. Bar Law Student Community 
  • Matthew Leopold, General Counsel, U.S. EPA
  • Cynthia Taub, Steptoe & Johnson (Moderator)
$0 D.C. Bar Environment, Energy and Natural Resources Community Member
$0 D.C. Bar Administrative Law and Agency Practice Community Member 
$0 D.C. Bar Law Student Community Member
$15 Government/Non-Profit
$20 D.C. Bar Member
$25 Non-Member
REGULAR REGISTRATION *After February 14, 2020
$10 D.C. Bar Environment, Energy and Natural Resources Community Member
$10 D.C. Bar Administrative Law and Agency Practice Community Member 
$10 D.C. Bar Law Student Community Member
$25 Government/Non-Profit
$30 D.C. Bar Member
$35 Non-Member

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Matthew Leopold, General Counsel, US EPA

Cynthia Taub, Steptoe & Johnson LLP (Moderator)