Federal WOTUS Regulatory Update Post-Sackett Ruling

US Wetlands Updates and What Developers Need to Know

Since our last update on Waters of the United States (WOTUS), there have been notable changes. The SCOTUS ruling on the Sackett vs. U.S. Environmental Protection Agency (EPA) case has set a new precedent for the interpretation of which waters and wetlands are considered WOTUS. As a result of this recent ruling, numerous projects have been put on hold, pending the issuance of Approved Jurisdictional Determinations (AJDs) from both the US Army Corps of Engineers (USACE) and the EPA. Many project teams are anxious because of the uncertainty. Until the official implementation guidance is released from the EPA and USACE, it’s impossible to offer a precise path forward or address specific questions regarding the changes in jurisdictional status for individual sites.

To add to the complications, EPA has notified the public there will be a new WOTUS rule published on September 1, 2023. Those who would be working on putting the guidance documents together are now focusing on the new rule.  Implementation guidance is expected to be provided following the publishing of the new rule.

Here are some of the most commonly asked questions and answers that might help shed light on the latest development:

Due to the scarcity of information currently available about the new rule, the provided answers are based on the best estimates obtained through consultations with various regulators and members of the National Association of Wetland Managers nationwide, along with insights gained from past experiences. The answers provided above are our professional opinions and are not associated with EPA or the USACE.

Review of Past WOTUS Rules

All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;

All interstate waters including interstate wetlands;

All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation, or destruction of which could affect interstate or foreign commerce including any such waters:

• Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
• From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
• Which are used or could be used for industrial purposes by industries in interstate commerce;

All impoundments of waters otherwise defined as waters of the United States under this definition;

Tributaries of waters identified in paragraphs (s)(1) through (4) of this section;

The territorial sea;

Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (s)(1) through (6) of this section; waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States. Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA.

The Navigable Waters Protection Rule (NWPR):

Under Trump’s NWPR, since repealed by EPA under Biden/Harris administration, one of the key changes was that ephemeral streams were essentially non-jurisdictional so they could not be used as a conduit of connectivity/ for establishing significant nexus.

Example: John Doe’s same two-acre wetland mentioned above would not be jurisdictional. Meaning that although it was still a “wetland” based on the Corps Delineation guidelines, it was non-jurisdictional. It would not require a permit and mitigation for impacts.

2023 Biden WOTUS Rule

Biden’s WOTUS rule is essentially the same as the Pre-2015 Rule adding:

The “relatively permanent standard” refers to the test to identify relatively permanent, standing, or continuously flowing waters connected to paragraph (a)(1) waters, and waters with a continuous surface connection to such relatively permanent waters or to traditional navigable waters, the territorial seas, or interstate waters. The “significant nexus standard” refers to the test to identify waters that, either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of traditional navigable waters, the territorial seas, or interstate waters— i.e., the paragraph (a)(1) waters. The regulatory text defines “significantly affect” in order to increase the clarity and consistency of implementation of the significant nexus standard.

With respect to “adjacent wetlands,” the concept of adjacency and the significant nexus standard create separate, additive limitations that work together to ensure that such wetlands are covered ( i.e., jurisdictional under the Act) when they have the necessary relationship to other covered waters. The adjacency limitation focuses on the relationship between the wetland and the covered water to which it is adjacent. Consistent with the plain meaning of the term and the agencies’ 45-year-old definition of “adjacent,” the rule requires that an “adjacent wetland” be “bordering, contiguous, or neighboring” to another covered water.[5] Where a wetland is adjacent to traditional navigable water, the territorial seas, or interstate water, consistent with longstanding regulations and practice, no further inquiry is required, and the wetland is jurisdictional. But where a wetland is adjacent to covered water that is not traditional navigable water, the territorial seas, or interstate water, such as a tributary, this rule requires an additional showing for that adjacent wetland to be covered: the wetland must satisfy either the relatively permanent standard or the significant nexus standard. And that inquiry, under either standard, fundamentally concerns the adjacent wetland’s relationship to the relevant paragraph (a)(1) water rather than the relationship between the adjacent wetland and the covered water to which it is adjacent. In other words, the adjacent wetland must have a continuous surface connection to a relatively permanent, standing or continuously flowing water connected to a paragraph (a)(1) water or must either alone or in combination with similarly situated waters significantly affect the chemical, physical, or biological integrity of paragraph (a)(1) water.

In addition, this rule codifies several exclusions from the definition of “waters of the United States,” including longstanding exclusions for prior converted cropland and waste treatment systems, and for features that were generally considered non-jurisdictional under the pre-2015 regulatory regime.

Example: John Doe’s 20-acre property includes a two-acre wetland connected to a roadside ditch, which leads to an intermittent stream, then a perennial stream, and finally to a navigable waterway. This substantial connection classifies the wetland as jurisdictional under the Clean Water Act, requiring permits and mitigation, disregarding man-made barriers, and considering subsurface hydrological links.

Sackett vs. Environmental Protection Agency

Partner’s interpretation of SCOTUS WOTUS Sackett Ruling in its most basic form is that “significant nexus” will no longer be utilized for establishing the jurisdiction or lack of over a wetland or other surface water. A wetland will now have to have a continuous surface connection to a navigable waterway and will have to be indistinguishable from any possibly covered waters. This will change the jurisdictional status of the majority of wetlands and other surface waters. This will also lead to individual states passing their own wetlands and surface waters regulations, creating a complicated patchwork of regulations.

Hypothetical examples are as follows:

• Example 1: Jane Doe owns a 100-acre piece of land, and on the western side, it is bordered by the Mississippi River, a Traditionally Navigable Waterway (TNW). In the middle of her property, there is a large wetland. This wetland extends northward beyond Jane’s property, passing through several other landowners’ tracts. Eventually, it connects to the Mississippi River. As long as this wetland maintains an unbroken flow (even if it goes through other properties and regardless of the distance covered), it will be considered as having a continuous surface connection to the navigable waterway. Consequently, it falls under the jurisdiction of the regulations that govern the navigable waterway.
• Example 2: Jane Doe owns a 100-acre tract of land with the Mississippi River bordering its western side. In the middle of the tract lies a large wetland that extends northward, flowing through several other landowners’ tracts. However, the wetland’s flow eventually stops, and it connects to an ephemeral, intermittent, or perennial stream. This stream then continues for another 500 feet before it finally reaches the Mississippi River. In this situation, the wetland would not be considered jurisdictional because it lacks an immediate connection to the navigable waterway.
• Example 3: Jane Doe owns a 100-acre tract of land, with the Mississippi River bordering its western side. In the middle of this tract lies a large wetland that meanders and directly connects to the Mississippi River. Additionally, she has another separate wetland that is not continuously connected to the first one; it only touches a roadside ditch. In this scenario, the first wetland would be considered jurisdictional under the relevant regulations, while the second wetland would not be jurisdictional due to its lack of a direct and continuous connection to the Mississippi River.

Please note the interpretation and many assumptions are applied until the guidance is formally issued. The ruling also lacks clarification for the points below.

1. Will single man-made barriers again be considered a sever of jurisdiction like under Trump’s NWPR? If so a road or levee separating an otherwise continuous wetland could be the basis for the lack of jurisdiction over the wetland area severed.
2. It’s unclear if 100% of the wetland has to be connected only to a navigable waterway.
3. Whether if an immediate connection to a flowing perennial stream is considered a basis of jurisdiction?

Approved Jurisdictional Determination (AJD) vs. Preliminary Jurisdictional Determination (PJD)

As in the past, an AJD is issued if a request is made to establish a potential lack of jurisdiction under a particular ruling; a PJD is requested/issued if the wetlands are jurisdictional without argument, or if an appeal is planned. The same will apply under the new ruling. In order to have an existing JD reviewed under the current ruling it will need to be converted to an AJD request or if already an approved PJD, resubmitted as an AJD request.

North Carolina Wetland Regulatory Change

On a separate note, there is also a state update for the waters of North Carolina. The North Carolina Farm Act 2023 veto was overturned and became law in North Carolina. This means that the state can only regulate wetlands that are determined to be Waters of the United States. Tucked into this Act was an amendment to clarify the definition of wetlands. The Act amends the definition of wetlands in North Carolina to be restricted to only those “waters of the United States as defined by 33 C.F.R. § 328.3 and 40 C.F.R. § 230.3.”

Below is the summary provided by North Carolina.

“CLARIFY DEFINITION OF WETLANDS Prior to an amendment in 2019, 15A NCAC 02B .0202 restricted the definition of “wetlands” to only those “waters of the United States as defined by 33 C.F.R. § 328.3 and 40 C.F.R. § 230.3.” That restriction was removed during the Environmental Management Commission’s (Commission) rule readoption process in 2019. Section 15 would direct the Commission to implement 15A NCAC 02B .0202 consistent with the pre2019 definition of “wetlands” restricting those waters to only those waters of the United Stated as defined by 33 C.F.R. § 328.2 and 40 C.F.R. § 230.2, and readopt its rule consistent with that implementation. The rule would also specify that wetlands do not include prior converted cropland, consistent with the existing rule.”

Glossary Terms

• Headwater Streams
• Ephemeral Stream
• Intermittent Stream
• Perennial Stream
• Traditionally Navigable Waterway (TNW)
• Significant Nexus