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.
- Attempted to clarify which wetlands and other surface waters the federal government regulates.
The Sackett ruling has restricted U.S. Army Corps of Engineers (USACE) jurisdiction such that many wetlands previously under federal jurisdiction will now be considered “isolated wetlands” regulated only at the state level, if at all. Most states do not regulate isolated wetlands. States such as Ohio, Pennsylvania, and Indiana, do have isolated wetland laws with varying levels of restriction and resource protection. Some isolated wetlands in non-regulating states may still be protected at the county or local municipality level, so due diligence in understanding state, county, and local regulations around isolated wetlands will be increasingly important.
What Will This Look Like In Practice?
USACE’s jurisdiction will no longer include wetlands that are “neighboring” or “adjacent to” (near but not touching) a stream. Since 2006, neighboring and adjacent wetlands have been evaluated using the “Significant Nexus” test, a methodological construct of Justice Kennedy’s opinion in the case of Rapanos v. United States. In Sackett, the Supreme Court unanimously struck down the long standing “Significant Nexus” test and provided multiple reasons that the concept of “neighboring” was not consistent with the intent of the Clean Water Act. Such an interpretation will substantially reduce USACE's jurisdiction over wetlands at the federal level.
Based on the Supreme Court’s decision, which emphasizes “relatively permanent waters,” it also appears that ephemeral streams and any wetlands that are connected to them will not be federally regulated.
What Happens Now?
As a practical matter, how USACE will interpret the jurisdictional limit between adjacent and non-adjacent wetlands is yet to be determined. Davey Resource Group (DRG) anticipates that this will require USACE and Environmental Protection Agency (EPA) to develop field guidance (as an interim effort), and ultimately re-write the Waters of the U.S. regulations, a process that could take at least 12 to 18 months.
Given the circumstances at the moment, it will likely be month(s) before USACE 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.
For time-sensitive projects, permit applicants can still submit permit applications and USACE will issue a preliminary jurisdictional determination (pre-JD) stating that USACE will take jurisdiction over all wetlands in the permit area. For information regarding how these changes may affect your project, please contact your local DRG office.