Looking Back, Looking Forward: A Review of Trump Administration Rulemakings and Charting a Path Forward

Held Tuesday, January 12, 2021 - 2:00pm-4:00pm ET

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INTRODUCTION

  • Marla Stelk, Executive Director, Association of State Wetland Managers

POWERPOINT PRESENTATION

PRESENTERS

  • Julia Anastasio, Association of Clean Water Administrators 
  • Royal Gardner, Professor of Law and Director of the Institute for Biodiversity Law and Policy Stetson University College of Law [POWERPOINT PRESENTATION]
  • James M. McElfish, Jr., Senior Attorney, Environmental Law Institute 
  • Donna Downing, Senior Legal Policy Advisor, Association of State Wetland Managers
  • Marla Stelk, Executive Director, Association of State Wetland Managers 

ABSTRACT

The Trump Administration has been a time of substantial change to aquatic resource protection programs, as well as to rulemaking processes used to define program requirements.  For example, on January 30, 2017, President Trump signed Executive Order (E.O.) 13771, Reducing Regulation and Controlling Regulatory Costs, which spearheaded his Unified Agenda of Regulatory and Deregulatory Actions and directed all agencies to repeal at least two existing regulations for each new regulation issued in FY 2017 and thereafter. This initial E.O. laid the context for the subsequent E.O. 13778, Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule, which was published in the Federal Register just four days later, on February 28.   The extent and speed of changes to aquatic resource protection programs has posed substantial challenges to states and tribes who have substantial responsibility under the federal Clean Water Act (CWA).

Clean Water Act programs address “waters of the United States,” and as a result the regulatory definition of that threshold term determines the scope of multiple aquatic resource and water quality protections. The Trump Administration’s 2020 Navigable Waters Protection Rule (NWPR) replaced the Obama Administration’s 2015 Clean Water Rule with a narrower definition of WOTUS.  Because CWA programs address waters of the US, the new narrower definition created a domino effect and reduced the extent of protections from those programs.  For example, CWA Section 401 certifications are required only for permits or licenses that may result in discharges into WOTUS, Nationwide Permits under section 404 apply only to discharges of dredged or fill material into WOTUS, as does section 404’s requirement for compensatory mitigation for impacts to WOTUS.  As the extent of waters considered to be WOTUS shrinks, so do the protections of programs such as these.  In addition, the Trump Administration has undertaken rulemaking to revise these and other CWA programs, further affecting the programs’ abilities to protect aquatic resource and water quality. 

In this webinar, the implications of these changes for state and tribal aquatic resource programs were examined and discussions included past, recent and ongoing rulemakings and court cases, enforcement issues, points of process for moving forward, and potential actions by the new Biden Administration. 

BIOS

Julia AnastasioJulia Anastasio joined the Association of Clean Water Administrators in May 2014 as the Executive Director and General Counsel. ACWA is an independent, nonpartisan national organization of state and interstate water program managers, who on a daily basis implement the water quality programs of the federal Clean Water Act. At ACWA, Ms. Anastasio focuses on working with state water program directors and EPA’s Office of Water on ensuring that the states have the resources they need to implement the Clean Water Act in their home states. Ms. Anastasio has over two decades of experience in government, administrative and environmental law and federal policy development. She began her career with the Pennsylvania Department of Environmental Protection as an Executive Policy Specialist and returned to Washington, DC in 2005 to work for the America Public Works Association (APWA). While at APWA, she focused on environmental, sustainability and infrastructure development at the local, state and federal levels. Ms. Anastasio earned her B.A. from Franklin Marshall College, her Masters in Environmental Law and Policy from Vermont Law School, and her J.D. from American University.

Royal GarnderRoyal C. Gardner is Professor of Law and Director of the Institute for Biodiversity Law and Policy at Stetson University College of Law. He is an internationally recognized expert in wetland law and policy. Recent projects include serving as the Chair of the Scientific and Technical Review Panel of the Ramsar Convention on Wetlands, testifying before a World Bank arbitration panel, advising the Government of Oman regarding wetland policy, and coauthoring amicus briefs on behalf of environmental scientists. In WOTUS-related litigation, he has filed amicus briefs in the U.S. Court of Appeals for the Sixth Circuit, and in the U.S. District Courts for the District of North Dakota and the Southern District of New York.



McElfishJames M. McElfish, Jr. is a Senior Attorney; Director with the Environmental Law Institute Sustainable Use of Land Program. Jim McElfish’s research focuses on development choices and their links to land use, water resources, biological diversity, and infrastructure policy. ELI’s Sustainable Use of Land Program makes connections among laws, policies, taxes, investments, and land use decisions. His work includes research on coastal zone activities, renewable energy siting, enforcement, and conservation outcomes. McElfish served as representative of the natural environment on the American Planning Association’s multi-year Growing Smarter Legislative Guidebook Directorate. McElfish also leads ELI programs on water resources, examining how watersheds and resources can be evaluated, used, conserved, and restored. He is a nationally recognized authority on NEPA and a former litigator in private practice and with the Department of the Interior. McElfish has been an ELI Senior Attorney since 1986.


Donna DowningDonna Downing is the Senior Legal Policy Advisor, Association of State Wetland Managers. Donna was the Jurisdiction Team Leader in the U.S. Environmental Protection Agency’s (EPA) Office of Wetlands, Oceans, and Watersheds. Donna worked on a variety of issues at EPA, with a focus in recent years on the geographic scope of the Clean Water Act (CWA) in light of the U.S. Supreme Court decisions. She also served as EPA’s staff lead for CWA section 401 water quality certification, and on wetland-related legal issues. Prior to joining EPA in 1998, Donna worked for the U.S. Congress Office of Technology Assessment and in private law practice. She has a BA magna cum laude from Harvard University, an MPP from the University of California at Berkeley, a JD cum laude from Georgetown University Law School, and an LLM in Environmental Law summa cum laude from George Washington University Law School. Donna has been an adjunct professor at George Washington University Law School since 1996, teaching environmental law. In what’s left of her time, she moonlights as a professional potter and an unprofessional horse trainer. Donna also enjoys traveling and has traveled by reindeer sled in the Swedish Arctic, gone winter camping with dog sleds in Minnesota’s Boundary Waters Wilderness Area, and bicycled the Burma Road in China.

Marla StelkMarla Stelk is the Executive Director at the Association of State Wetland Managers (ASWM) where she has worked on wetland policy and management issues since 2013. Marla has over 25 years of experience working on wetland, water, and wildlife issues, policy and research, land use planning, communications and organizational leadership. Marla has led research at ASWM on topics such as ecosystem service valuation for wetland restoration, the role of wetlands in floodplain and natural hazard management, wetlands and watershed health, wetland mapping and communications. Prior to coming to ASWM, Marla worked for a variety of environmental and social nonprofit organizations helping to build organizational capacity, manage projects and improve internal processes. Marla also has a successful background in small business management and ran her own custom metal sculpture studio for 15 years. Marla earned her MA in Community Planning and Development with a focus on Land Use and the Environment at the University of Southern Maine’s Muskie School of Public Service and her BA in Environmental Issues from Colorado College. 


Play

Part 1: Introduction: Part 1: Marla Stelk, Association of State Wetland Managers
Presenters: Royal Gardner, Professor of Law and Director of the Institute for Biodiversity Law and Policy Stetson University College of Law and Julia Anastasio, Association of Clean Water Administrators

Play

Part 2: Presenters: Julia Anastasio, Association of Clean Water Administrators; Donna Downing, Senior Legal Policy Advisor, Association of State Wetland Managers; and Marla Stelk, Executive Director, Association of State Wetland Managers

Play

Part 3: Presenter: James M. McElfish, Jr., Senior Attorney, Environmental Law Institute
Question & Answers

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