The long-awaited Supreme Court ruling Sackett et ux. v. Environmental Protection Agency et al. was issued on May 25, 2023. In summary, the Supreme Court decision:
- Did not change the definition of wetlands.
- Upheld states’ authority to address water pollution via regulation of land and water use.
- Did restrict which wetlands and other surface waters the federal government regulates.
The U.S. Army Corps of Engineers’ jurisdiction has been restricted significantly, such that some features previously federally-regulated will now be considered “isolated wetlands” that are only regulated by states, including Virginia and Maryland.
The Court substantially reduced the definition of “adjacent wetlands” so that “adjacent” includes only those wetlands “bordering” or “contiguous” to waterways (e.g. rivers, streams, lakes, and tidal waterbodies).
The Supreme Court unanimously struck down the “Significant Nexus” test to regulate adjacent wetlands that were neighboring, and provided multiple reasons that the concept of “neighboring” was not consistent with the intent of the Clean Water Act.
In sum, we hold that the Clean Water Act extends to only those wetlands that are as a practical matter indistinguishable from waters of the United States.
To be a federally-regulated wetland:
…the wetland has a continuous surface connection with that water… making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.
The Supreme Court also clarified and emphasized the role of the states in water protection:
The Clean Water Act anticipates a partnership between the States and the Federal Government. States can and will continue to exercise their primary authority to combat water pollution by regulating land and water use.
What Does This Look Like in Practice?
The Corps’ jurisdiction will therefore no longer include wetlands that are “neighboring” (near but not touching) a stream. Since 2006, neighboring streams had been evaluated using the “Significant Nexus” test, a methodological construct of Justice Kennedy’s opinion in the case of Rapanos v. United States. This 2023 opinion in Sackett is a paradigm shift 17 years later.
Such an interpretation reduces the Corps’ jurisdictional reach substantially. How that break in the field is resolved is to be determined. As examples, along Back Bay in Virginia Beach or the Great Dismal Swamp, the swampy wetlands along the edge of open waters would be adjacent wetlands, but the mineral flat wetlands that are dry most months of the year would likely not meet this new test of the Supreme Court.
Based on the Supreme Court’s decision, which emphasizes “relatively permanent waters,” it appears that ephemeral streams will not be federally regulated. In Maryland, where ephemeral streams are not regulated by the state, this decision leaves ephemeral streams unprotected. Virginia currently regulates all state surface waters, including isolated wetlands and all streams with an ordinary high water mark.
What Happens Now?
As a practical matter, how the Corps interprets in the field the break point between adjacent and non-adjacent wetlands is the key issue. WSSI believes this will require:
- the Corps and the EPA (who administers the Clean Water Act) to develop some field guidelines (as an interim effort), and
- ultimately a re-write of the Waters of the US regulations, a process which could take 12-18 months.
Given the circumstances at the moment, it will be weeks to month(s) before the Corps and EPA issue guidance on how to proceed with the field interpretation of the Sackett findings (similar to the delays experienced following the Rapanos decision in 2006). Until then, it appears the federal government cannot make decisions on jurisdiction.
If you cannot wait for a delineation to be resolved, you can always submit a permit application, which requires the Corps to render opinions on the jurisdiction of wetlands immediately, so that they can process the permit application. How the Corps would handle such situations will be very fact-specific and hard to predict in the general sense until written guidance is available.
Additionally, the Virginia DEQ is now issuing their own State Surface Water Determinations, which clarify what state surface waters Virginia is regulating. The DEQ’s program has no bearing on the Corps’ jurisdiction. Maryland does not have a comparable program.
By apparent coincidence, the Norfolk District USACE office issued a Public Notice on the same day as the Supreme Court issued its opinion May 25. That public notice basically advises that the District is not issuing stand-alone jurisdictional determinations any longer. Click here for WSSI’s related Field Notes article.