Coordinator: Jon Kusler, Esq., Associate Director, Association of State Wetland Managers, Inc., Institute for Wetland Science and Public Policy
Goals: The workshop will be designed to serve a number of principal goals:

·	Help attendees understand the impact of SWANCC, including what wetlands and related waters are "waters of the U.S." after SWANCC.
·	Examine how the courts have, to date, treated key terms such as “navigable water”, “adjacency”, “tributary”, and “significant nexus” in a post-SWANCC context.
·	Examine the legal and scientific issues associated with a number of “problem” contexts such as riparian zones, ephemeral streams, arroyos, closed and partially closed basin wetlands and lakes, artificial drains and wetlands and waters linked to navigable waters through sheet flow or ground water.
·	Examine, from a scientific basis, what sorts of arguments can and cannot be made that specific wetlands and waters are waters of the U.S.
·	Discuss how states, tribes, and local governments may be able to fill the gaps in Section 404 and related programs by including wetlands in water quality programs.
·	Help states, tribes, federal agencies and other entities identify strategies for developing sound, coordinated jurisdictional calls.

Need for Workshop: Despite the passage of four years since SWANCC, there is still considerable uncertainty among federal agencies, and state, tribal and local governments, consultants, landowners and others concerning the status of "waters fo the U.S." There is a need for a consistent understanding of SWANCC and other decisions interpreting "waters of the U.S." and in the role science can play clarifying the meaning of "navigable", "tributary", "adjacency", "significant nexus", and other key terms in deciding whether specific wetlands and waters are "waters fo the U.S." They need to know what sorts of scientific and legal arguments may and may not be sound.
States, Tribal and Local government wetland protection and restoration programs need to play a larger role in closing the gap created by the SWANCC decision. State, Tribal and Local governments need to exchange information about what is currently being done or planned in other states to address the gaps created by SWANCC with special reference to incorporation of wetland provisions into water quality monitoring programs.
Attendees:  The target audience is lawyers, regulators and other staff from federal, state, and local government agencies (wetland, riparian area, water programs, floodplain management, coastal zone, river, and pollution control), consultants, landowners, staff of environmental organizations and others interested in identifying "waters of the U.S." for Section 404 permitting and for other purposes.

Cooperating Parties:
·	New Mexico Riparian Council
·	U.S. Environmental Protection Agency, Headquarters, Region 6, Region 10
·	U.S. Army Corps of Engineers
·	Association of State Floodplain Manager
·	Society of Wetland Scientists
·	International Association for Fish and Wildlife Agencies
·	National Wildlife Federation
·	National Association of Attorneys General
·	New Mexico Environment Department
·	Other (Please contact us if you are interested.)

Day 1. Tuesday, October 18. "Waters of the U.S."
8:00a.m.-8:30a.m.	Registration
8:30a.m.-9:00a.m.	Introductions. Eash participiant will briefly introduce himself or herself and state his or her highest priority legal issue with regard to the topic of the workshop.
9:00a.m.-9:20a.m.	Welcome, Goals of the Workshop, Scientific and Legal Issues. Jon Kusler, Esq., Association of State Wetland Managers, Inc.
9:20a.m.-10:15a.m.	The SWANCC Decision, Clean Water Act (CWA) Implications, Status of Administrative Actions Since SWANCC, Field Issues in Determining CWA Jurisdiction.

·

The SWANCC Decision, Clean Water Act (CWA) Implications, Status of Administrative Actions Since SWANCC, Field Issues in Determining CWA Jurisdiction. Donna Downing, Esq., U.S. Environmental Protection Agency and Russ Kaiser, U.S. Army Corps of Engineers

10:15a.m.-10:35a.m.	Coffee
10:35a.m.-11:35a.m.	Post-SWANCC Decisions.  Case Law Issues in Determining Whether Particular Waters are "Waters of the U.S." (Navigability", "Adjacency", "Tributary", "Significant Nexus", Other)

	·	Post-SWANCC Litigation.  Stephen Samuels, Esq., U.S. Department of Justice
	·	The Legal Significance of "Navigability" to Post-SWANCC CWA Jurisdiction. Lance D. Wood, Esq., U.S. Army Corps of Engineers

11:35a.m.-11:50a.m.	Welcome on Behalf of New Mexico; Clean Water Act Jurisdiction from a New Mexico Perspective. Ron Curry, Secretary of the New Mexico Environment Department
11:50a.m.-12:10p.m.	New Mexico Riparian Council Awards.
12:10p.m.-1:30p.m.	Lunch.  Discussion Tables: Scientific and Legal Issues.

	¨	Corps and EPA Regulatory Policies. Moderator: Donna Downing, Esq., U.S. Environmental Protection Agency
	¨	·The Isolated State of Texas Coastal Plain Wetlands. Moderator: John Jacob, Texas Cooperative Extension
	b¨	Closed Basin Lakes and Wetlands. Moderator: Jon Kusler, Esq., Association of State Wetland Managers, Inc.
	b¨	Navigability. Moderator: Lance D. Wood, Esq., U.S. Army Corps of Engineers
	b¨	Using Remote Sensing to Identify “Waters of the U.S.” Moderator: Peter Stokely, U.S. Environmental Protection Agency
	b¨	Joint Enforcement of Clean Water Act Policies. Moderators: James O. Payne, Jr., Esq., U.S. Department of Justice and Paula Cotter, Esq., National Association of Attorneys General
	b¨	Soils and Identification of Waters of the U.S. Moderator: Jim Richardson, Ph.D., USDA Natural Resources Conservation Service
	¨	Waters Connected to Other Waters Through Artificial Means (ditches, pipes, canals, pumps, etc.). Moderator: Patrick Parenteau, Professor of Law, Vermont Law School
	¨	New Mexico Riparian Council. Moderator: Ondrea Hummel, U.S. Army Corps of Engineers
	¨	New Mexico Riparian Council. Moderator: Richard Becker, New Mexico Riparian Council
	b¨	Options for Closing the Gaps Created by SWANCC. Moderator: Jeanne Christie, Association of State Wetland Managers, Inc.

1:30p.m.-3:30p.m.	Scientific Challenges and Tools for Addressing SWANCC Issues
	·	How Science Can Inform CWA Jurisdiction and Policy After SWANCC: Hydrological and Ecological Connectivity. Tracie Nadeau, Ph.D., U.S. Environmental Protection Agency
	·	Findings in the Mid-Atlantic Region Concerning the Implications for Clean Water Act Jurisdiction for Various Interpretations of SWANCC. Charles A. Rhodes, Jr. U.S. Environmental Protection Agency
	·	Isolated Wetlands – How Isolated are These Wetlands? Jimmie Richardson, Ph.D., USDA Natural Resources Conservation Service
	·	Aerial Photo Interpretation and GIS to Help Establish the Presence of “Waters of the United States". Peter Stokely, U.S. Environmental Protection Agency

3:30p.m.-3:45p.m.		Afternoon Break.
3:45p.m.-4:10 p.m.		Cooperative Enforcement.  John C. Cruden, Esq. Deputy Assistant Attorney General, U.S. Department of Justice

4:10p.m.-5:20p.m.	Legal Issues:  Factually Documenting “Jurisdictional Calls for Permitting, Enforcement. Building a Clean Water Act Jurisdictional Case.
	·	Science and Theater:  Defending Jurisdictional Calls in the Courtroom. Lyndon Lee, Ph.D., BBL Sciences - Ecosystem Science & Restoration Services and Sylvia Quast, Esq., Resources Law Group
	·	Jurisdictional Calls for Permitting, Enforcement: Building a Clean Water Act: Ground Water Connections and “Waters of the U.S.”  James Murphy, Esq., National Wildlife Federation

5:20p.m.-6:30p.m.	Cash Bar, Mixer.
6:30p.m.-8:00p.m.	Dinner (On Your Own)
8:00p.m.-9:00p.m.	Status of State and Federal “Taking" Issue Cases Pertaining to Waters of the U.S. Including Wetlands and Riparian Zones; Avoiding Taking Problems.
	·	Recent Development in the Supreme Court and Federal Courts. Patrick Parenteau, Professor of Law, Vermont Law School
Day 2. Wednesday, October 19. Waters of the U.S. Continued
8:30a.m.-10:00a.m.	Clean Water Act Legal Issues (Continued)

	bb·	The Role of Citizen Enforcement After SWANCC. Charlie Tebbutt, Western Environmental Law Center
	bb·	Ditching It Out…But, Can the Corps Take It?  Duane Desiderio, Esq. and Tom Ward, National Association of Home Builders
	bb·	Comparison of Observed Ordinary High Water Marks to Flood Recurrence Frequency in Streams in Arid Southern California. Bill Magdych, Ph.D., URS Corporation

10:00a.m.-10:20a.m.	Coffee.
10:20a.m.-10:50a.m.	Clean Water Act Legal Issues (Continued).
	¨	Determining Ordinary High Water Mark: Can the Corps Change the Rules This Late in the Game?  Patrick Parenteau, Professor of Law, Vermont Law School
10:50a.m.-12:00p.m.	Open Discussion, Legal Issues.  All speakers will reassemble on the podium and will answer questions from the audience.
12:00p.m.-1:15p.m.	Lunch. Discussion Tables.
	¨	Corps and EPA Regulatory Policies. Moderator: Donna Downing, Esq., U.S. Environmental Protection Agency
	¨	The Takings Issue. Moderator: Patrick Parenteau, Professor of Law, Vermont Law School
	¨	Citizen Suits. Moderator: Charlie Tebbutt, Esq., Western Environmental Law Center
	¨	Preparing a Clean Water Act Case. Moderator: Deborah Harris, Esq., U.S. Department of Justice
	¨	Proving a “Significant Nexus”. Moderator: Tracie Nadeau, Ph.D., U.S. Environmental Protection Agency
	¨	Filling the Gaps Created by SWANNC. Moderator: Jeanne Christie, Association of State Wetland Managers, Inc.
	¨	Federal/State Cooperation in Enforcement. Moderator: James O. Payne, Jr., Esq., U.S. Department of Justice
		The Isolated State of Texas Coastal Plain Wetlands. Moderator: John Jacob, Texas Cooperative Extension
		Wetlands Connected by Groundwater. Moderator: James Murphy, Esq., National Wildlife Federation
	¨	Recent U.S. Supreme Court Cases. Moderator: To be designated.
1:15p.m.-2:50p.m.	Closing the Gap Created by SWANCC.
	·	Overview of State Efforts to Close the Gaps in Jurisdiction: Status and Trends in State Wetland Programs. Jeanne Christie, Association of State Wetland Managers, Inc.
	¨	Efforts to Close the Gap Using Water Quality Statutes: Lessons from Indiana.