The May 25, 2023 Supreme Court ruling in Sackett et ux. v. Environmental Protection Agency et al has changed wetland protection in the U.S. While federal processes have been disrupted, the decision affirmed state authority to address water pollution via regulation of land and water use, and Virginia’s Water Protection Program will continue to provide State Surface Water Determinations to keep the Virginia aspects of jurisdiction and impact authorization moving forward. As Virginia Department of Environmental Quality (DEQ) Director Mike Rolband said in a press release today, “We are doing everything possible to ensure that the Sackett decision does not harm Virginia’s growing economy or environment.”
In today’s memo to stakeholders DEQ confirmed that while it has relied on jurisdictional determinations from the U.S. Army Corps of Engineers (Corps) in the past to initiate processing a permit application, Virginia actions will not be delayed while the Corps and the U.S. EPA figure out a path forward on federal jurisdiction. Both agencies have announced their intentions to push out a Final Rule by September 1 of this year.
To remove barriers to potential permitting delays, DEQ will rely on State Surface Water Determination, as the means of verifying the accuracy of a delineation so that they can move forward with permit application review. Previously DEQ was requiring a Corps Jurisdictional Determination before initiating permit application review. Additionally, when the SSWD request is submitted by a Virginia-certified Professional Wetland Delineator, “DEQ will strive to review each SSWD request within 30 days – which may involve field review.” WSSI has 13 Professional Wetland Delineators (PWDs) across Virginia and is well positioned to work with DEQ and project proponents to ensure timely processing of applications for impact authorizations. PWDs have documented expertise in wetland and other surface water delineation, and have been licensed by the Virginia Department of Professional and Occupational Regulation.
To understand how WSSI’s team of PWDs can help ensure smooth processing with DEQ, or to discuss the implications of the Sackett decision for your current and upcoming projects, please contact your WSSI project manager or one of the staff listed here.