What’s Next for U.S. Wetlands After Sackett v. EPA?
While the Sackett v. EPA Supreme Court decision has forced the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) to revise their definition of Waters of the U.S. (WOTUS), it will be business as usual for the environmental scientists at Snyder & Associates when completing wetland and stream delineations for our clients.
The historic ruling decided that the Clean Water Act (CWA) jurisdiction is limited to adjacent wetlands with a “continuous surface connection” to waterbodies recognized as Waters of the United States. This narrower definition could make it more challenging to determine where a waterway ends and a wetland begins.
Jeff Walters, PWS, and Environmental Sciences Group Leader at Snyder & Associates concedes, “The new WOTUS definition will certainly change the jurisdiction of specific wetlands without connectivity to relatively permanent waterways. However, our team still needs to complete environmental due diligence for our clients to ensure their projects are within the limits of the redefined law.” Walters continues, “We complete wetland and stream delineations to provide baseline data to our clients and the U.S. Army Corps of Engineers for their jurisdictional determination. Understanding and interpreting the new rule is important because it formulates our opinion of jurisdiction when we write our reports, influencing the USACE.”
Through communications with several USACE Districts, Nichoel Church, PWS, and Environmental Scientist with Snyder & Associates relays that “Our contacts have consistently stated that while there will indeed be some changes to WOTUS jurisdiction, the USACE still needs to receive and review delineations. This is important since the USACE, in concert with the EPA, provides jurisdictional determinations and permitting of projects with temporary and permanent WOTUS impacts.” Church adds, “It’s not the responsibility of consultants or contractors to determine if potential WOTUS is jurisdictional. This responsibility still resides with the USACE, and any impacts to WOTUS without a 404 permit will continue to result in applicants receiving cease and desist letters with possible enforcement penalties such as WOTUS restoration and fines.”
Importance of Wetland and Stream Delineations
In addition to informing the USACE and clients, wetland and stream delineations provide baseline data for project managers to understand where WOTUS may be located within a project’s limits. This information is critical to understand so potential WOTUS impacts can be avoided or minimized. In a wetland delineation report, our environmental professionals document all wetland and stream features within a project area and provide an opinion on the jurisdiction of delineated features. Ultimately, the USACE Regulatory Branch determines jurisdiction using our wetland delineation report. USACE also acts as the permitting agency that administers Section 10 and Section 404 of the CWA.
Court Decision Impacts to Permitting & Determinations
At the crux of the Sackett decision, the Supreme Court decided that a “significant nexus” is no longer a valid factor for determining wetland jurisdiction. Significant nexus is the idea that a wetland must have a clear and substantial connection to larger bodies of water, like rivers and lakes, to fall under federal jurisdiction. Previously, USACE had to assess whether a waterbody significantly impacted the physical, chemical, or biological condition of traditional navigable waters to use this criterion. Now, the jurisdiction of the Clean Water Act is limited to adjacent wetlands that are physically connected to other bodies of water on a relatively permanent basis.
However, the exact meanings of “relatively permanent” and “adjacent” still need to be clarified by the EPA and USACE. Until these definitions are established, and the updated WOTUS guidelines are officially published, there could be delays in obtaining permits and jurisdictional determinations. This means that now, more than ever, it’s crucial to consult with a trusted professional in the field before embarking on a project that might impact an affected waterway.
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Both Walters and Church confirmed that the USACE is still accepting approved jurisdictional requests and permit applications; however, some of the submittals could be delayed as USACE and the EPA provide new definitions and guidance based on the Sackett case. Walters added, “In 20-plus years of completing wetland and stream delineations, I have worked through many Supreme Court rulings like Sackett, including SWANCC v. USACE and Rapanos v. United States. While the WOTUS definitions and interpretations have varied from case to case, our foundational goals have remained the same — complete the necessary delineation documentation to assist and protect our clients while maintaining our strong relationship with the USACE.”
Before embarking on any project that could affect waterways, we urge you to consult with trusted experts who can provide guidance. At Snyder & Associates, we are committed to providing environmental due diligence and comprehensive wetland and stream delineations. We have a long history of navigating evolving regulations and are here to ensure your projects move forward effectively and in compliance with the law. Don’t hesitate to reach out and take proactive steps to protect your projects and the environment.
