Last week, the US Supreme Court issued a monumental decision affecting federal environmental permitting rules in its Sackett v. EPA ruling. In brief, the Court substantially reduced the area regulated under the Clean Water Act (CWA).
Before joining Dawson & Associates, I spent 23 years in the Army Corps of Engineers and as a Regulatory Advisor to the Assistant Secretary of Army (CW). I prepared hundreds of environmental assessments, impact statements and Section 404 permits. I also drafted EPA and Corps agreements on CWA enforcement, jurisdiction, and mitigation.
What follows are my thoughts on the implications of this decision on CWA permit applicants and the Corps’ likely next steps:
First, I expect Corps HQ to send interim guidance to District and Division Offices and then follow up with a rulemaking. This will cover new geographic scope rules based on the Court’s opinion, but I expect it may also address spillover effects on other permitting requirements including Endangered Species Act (ESA) compliance and mitigation review standards.
Separately the debt limit bill deal agreed to by President Biden and Speaker McCarthy contains language to constrain the National Environmental Policy Act (NEPA) review process to preferably one year, and no more than two years. If this becomes law, the Corps and EPA will need to issue additional guidance for this as well.
Second, in my judgement, what’s especially important about the opinion is that it substantially reduces the Clean Water Act’s geographic scope in two ways: the upstream reach and the lateral reach. On the upstream reach, between 1975 until this opinion, the CWA’s upstream reach included all rivers, streams, and unnamed tributaries that exhibited an ordinary high-water mark (OHWM).
This opinion limits the CWA’s upstream reach to traditional navigable waters that were used, are being used, or could be used for commercial navigation. For the Corps of Engineers, this would be waters regulated under Section 10 of the Rivers and Harbors Act of 1899 (RHA). The opinion considers navigable waters of the United States and Waters of the United States to be the same. Since the Corps of Engineers halted navigability studies some time ago, some waters that may otherwise qualify may not be considered jurisdictional until a navigability study has been completed. While the Court opened the door a crack that relatively permanent waters could be included, it did not provide specificity. We just don’t know until guidance is provided by Corps HQ.
The other important implication of this decision is lateral extent. Prior to the opinion, the CWA’s lateral jurisdiction extended to the ordinary high water mark (OHWM) including any adjacent wetlands. The opinion eliminates adjacent wetlands as jurisdictional waters and only includes wetlands contiguous to a traditional navigable water and are indistinguishable from that navigable water.
Regarding the spillover effect to ESA compliance, my sense is that in recent years, many (perhaps most?) applicants rely more on the faster Section 7 consultation process rather than the more onerous and time-consuming Section 10 process. This decision may mean applicants have less opportunity to rely on Section 7 consultation and therefore Section 10 Habitat Conservation Plans may become their only option. This could become even more onerous and time-consuming since it will require new demands on US Fish and Wildlife Service personnel.
The decision’s effect on mitigation could cut both ways for permit applicants. Under CWA Section 404(b)(1) Guidelines, the Corps of Engineers requires appropriate and practicable mitigation for impacts to jurisdictional waters. A substantial reduction in jurisdictional waters would likely be followed by less required mitigation.
Also, unlike the Guidelines’ that includes mandatory mitigation requirements, the standard of review for requiring mitigation under RHA’s Section 10 is only to require mitigation when necessary to show a project would not be contrary to the public interest. For some applicants, this could result in lower mitigation costs. Coupled with the reduction in jurisdictional waters, applicants could have a considerable cost savings.
Before joining Dawson, Dave Barrows was Chief of Regulatory in three Districts, Chief of the Regulatory Technical Section at Army Corps of Engineers Headquarters, and Regulatory Advisor to ASA(CW).
The views expressed here are those of the author and do not necessarily reflect the views of Dawson & Associates.