On May 25, 2023, the Supreme Court issued a landmark decision, Sackett v. EPA, which will profoundly streamline the permitting requirements for many projects, including residential, commercial and industrial developments, utility and infrastructure construction projects, and road construction projects by significantly reducing the scope of wetlands and waters subject to federal dredge and fill permitting requirements under the federal Clean Water Act.
Following the Sackett decision, the waters subject to federal Clean Water Act permitting requirements are limited to:
1. Traditional interstate navigable waters (such as major rivers, lakes, and oceans);
2. “Relatively permanent” bodies of water connected to traditional interstate navigable waters; and
3. Wetlands that have a “continuous surface connection” with the above.
Going forward, parties seeking to impact a waterbody/wetland should have more certainty regarding which waterbodies/wetlands are subject to permitting, with fewer waterbodies/wetlands within the scope of federal permitting requirements. The new Sackett framework should also reduce the time and cost to obtain a federal permit.
The biggest takeaways from the Sackett decision are summarized below:
Creation of an Objective Standard--The “Significant Nexus” Analysis Is No More
The federal Clean Water Act applies to “waters of the United States,” an amorphous concept that was hotly debated for decades and created years of uncertainty. Before the Supreme Court’s Sackett ruling, applicants for federal dredge and fill permits had to conduct a costly as well as time and labor intensive “significant nexus” analysis to determine if a wetland was a “water of the United States” and, therefore, subject to permitting requirements. This analysis had to be performed pursuant to the Supreme Court’s prior decision in Rapanos v. United States. Under this prior Rapanos test, wetlands were subject to permitting if, based on several complex scientific considerations, the wetlands significantly affected the chemical, physical, and biological integrity of a navigable water. This complex and subjective approach did not provide a high level of certainty of landowners and EPA and the United States Army Corps of Engineers had frequently interpreted jurisdictional waters broadly. The Supreme Court in Sackett resoundingly rejected the cumbersome “significant nexus” approach and replaced it with a new more objective standard that focuses exclusively on the actual, physical surficial connection between wetlands and nearby navigable waters or their tributaries.
Wetlands: A “Continuous Surface Connection” is Necessary
Now, for a wetland to be subject to federal dredge and fill permitting, it must have a “continuous surface connection” to a traditionally navigable water or a relatively permanent body of water connected thereto. Therefore, the federal Clean Water Act regulation no longer extends to isolated wetlands that are nearby, but physically separated, from traditional navigable waters and their relatively permanent tributaries.
There are, however, exceptions to this general rule. The Supreme Court recognized that there may be times when a regulated wetland does not have a continuous surface connection due to low tides or dry spells. Additionally, the Court noted that a landowner could not circumvent permitting requirements for a wetland by constructing a barrier to separate an otherwise regulated wetland from connecting waters.
Streams: Only “Relatively Permanent” Waters are Regulated
In addition to establishing a new framework for determining when wetlands are subject to Clean Water Act jurisdiction, the Court held that for a water body to fall within the definition of a “water of the United States,” it must be a “relatively permanent” water with standing or continuously flowing water. No longer regulated are water bodies that are ephemeral or only have periodic surface flow following a rain event. Wetlands adjacent to such temporary water features are also no longer subject to regulation under the Clean Water Act.
Further Action Remains
Following the Sackett decision, the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency will issue forthcoming rules and guidance. Until then, the U.S. Army Corps of Engineers has paused the issuance of jurisdiction determinations. The pause on these determinations may negatively affect developers who often use the determinations to provide upfront certainty regarding the designation of any water features as “waters of the U.S.” and therefore regulated water bodies/wetlands that require a permit before being impacted. However, some previously identified jurisdictional waters may clearly no longer be subject to federal jurisdiction and project proponents may not need to wait on future guidance before filling these waters.
Despite the benefits and clarity the Sackett decision promises to bring to the regulated community, regulatory guidance is needed to address several open issues regarding the new framework’s extent and limitations, including:
1. At what point does a temporary interruption in surface connection between a wetland and a tributary result in the wetland no longer being subject to permitting?
2. Can a continuous surface connection be established by a ditch, swale, pipe, culvert, or other manmade feature?
3. How long must a water body flow to be considered “relatively permanent” and therefore subject to permitting?
State Authority Is Unaffected
Importantly, the Sackett decision does not impact any state-specific wetlands requirements. Certain states impose independent permitting requirements on wetlands and other waters not subject to federal regulation. These state programs remain unaffected by the Supreme Court’s Sackett ruling. Other states may look to enact their own wetland protection laws and regulations to fill the gap created by the Sackett decision. States may also use their authority in issuing Section 401Water Quality Certifications, which is a required part of the federal permitting process, to require additional protections for wetlands.
For many landowners, developers, and utility companies, the Sackett decision streamlines and provides some much-needed clarity for the federal wetlands permitting process. Despite these benefits, permit applicants must understand and track potential pitfalls and open questions that may arise as the ruling’s interpretation and implementation evolves. Our team will continue to track these developments closely and stands ready to assist in navigating the as-yet-uncharted waters left in Sackett’s wake.
If you have any questions about this legal update, please contact a member of the Environmental group.