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Recent Development With the Clean Water Act

OnDemand Webinar (86 minutes)

Understand the evolution of the Clean Water Act, its success, and how it has evolved to expand coverage over wet weather and emerging contaminants.The 1972 amendment to the Clean Water Act defined navigable waters as waters of the United States (commonly referred to as WOTUS) and subject to federal Clean Water Act jurisdiction, but left the definition of what falls under WOTUS under the discretion of the EPA and U.S. Army Corps of Engineers. Since then, the Agencies have struggled to address waters that were not clearly in or out of their WOTUS definitions. Litigation followed, with several landmark Supreme Court cases in which the Court has interpreted definitions for WOTUS and the Agencies' jurisdictional authority. Both the Obama and Trump Administrations have also attempted to resolve and clarify federal authority through competing rulemakings that resulted in more litigation. Today, many federal and state regulators, let alone regulated parties, are still confused regarding jurisdictional reach. In this material, Barnes & Thornburg attorneys will trace the key developments associated with defining federal jurisdiction under the Clean Water Act, explain the current definition, and assess immediate prospects for the new Administration. The presenters will also discuss other new developments affecting federal jurisdiction, including the Supreme Court's Maui decision impacting regulation of discharges to groundwater, and explain federal vs. state responsibilities and concepts of federalism.


Alexander Bandza, Barnes & Thornburg LLP Jeffrey S. Longsworth, Barnes & Thornburg LLP Jessica Reiss, Barnes & Thornburg LLP


New Navigable Waters Protection Rule

• Supreme Court Legal History

• 2015 Rule Recap and Trump Process to Undo That Rule

• New Rule Overview and Description of Key Aspects

• Litigation Status of New Rule and Its Future Under Biden Administration?

Maui Supreme Court Decision

• History of Clean Water Act Permitting for Discharges to Groundwater

• Maui Case History Leading up to Supreme Court Decision

• What the Supreme Court Decided

• Implications From That Decision and Subsequent Court Decisions

Stormwater Clean Water Act Permitting Developments

• EPA's Revised Multi-Sector General Permit for Industrial Stormwater Discharges

• Updates on Developments in EPA's Municipal Stormwater Permitting Program

• Updates on EPA's Construction Stormwater Permitting Program

Revisions to State 401 Certifications Associated With Federal Clean Water Act Permits

• Relevant History of Federal - State Clean Water Act Permitting Coordination

• Case History of Issues/Concerns Regarding Federalism and Permitting Delays

• New Trump Rulemaking Changing the 401 Certification Process

• Implications and Future Outlook Under Biden Administration

Clean Water Act Tools for Managing Emerging Contaminants (PFAS)

• EPA PFAS Action Plan

• December 2020 EPA Office of Water Guidance on PFAS and NPDES Permitting

• Clean Water Act PFAS Issues Looking Forward