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:
At present, USACE is not issuing Approved Jurisdictional Determinations unless the site is entirely upland/dryland; however, permitting can continue for projects that assume waters and wetlands are jurisdictional WOTUS without obtaining an AJD.
The SCOTUS WOTUS ruling does not impact the three states, Michigan, New Jersey, and Florida that have assumed jurisdiction of WOTUS from USACE.
The procedures used to identify and delineate wetlands and other surface waters in the field do not change. What changes is if those wetlands and other surface waters are jurisdictional or not.
SCOTUS ruled that the wetlands on the Sacketts’ property are distinguishable from any possibly covered waters. According to the SCOTUS Sackett v. EPA Syllabus, “The CWA’s use of “waters” in §1362(7) refers only to “geographic[al] features that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes’” and to adjacent wetlands that are “indistinguishable” from those bodies of water due to a continuous surface connection. To assert jurisdiction over an adjacent wetland under the CWA, a party must establish “first, that the adjacent [body of water constitutes] . . . ‘water[s] of the United States’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins. This occurs only when wetlands have “a continuous surface connection to bodies that are ‘waters of the United States’ in their own right so that there is no clear demarcation between ‘waters’ and wetlands.” 547 U. S., at 742.”
It is likely to see USACE resume processing AJDs in late 2023. A sequence of events will unfold with an estimated time for USACE to resume AJDs at the end of 2023. EPA is issuing the new WOTUS rule on September 1, 2023, then headquarters will provide implementation guidance shortly after. Each regional office will likely take additional time to instruct staff on how to interpret the implementation guidance. Similar to the most recent past administration’s ruling and implementation schedule, Trump’s Navigable Waters Protection Rule (NWPR), it will take some time for USACE to roll out the new procedures. Once USACE begins issuing JDs again and after regulators have worked on a few projects, Wetlands Consultants will be able to provide a more accurate assessment and professional opinion as to whether any wetlands on a site may be non-jurisdictional under SCOTUS WOTUS ruling; and under the current unpublished new WOTUS rule.
It would likely take up to 9 to 12 months for project permitting. Delineation verifications are taking 6 to 7 months currently. It may take an additional couple of months for USACE to start applying the new rule. The expected influx of new jurisdiction requests due to the new rule will also add more time.
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.
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.
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. 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.
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:
Please note the interpretation and many assumptions are applied until the guidance is formally issued. The ruling also lacks clarification for the points below.
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.
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.”