Depending on where you sit, the US Supreme Court (SCOTUS) Sackett v. EPA ruling has either added much sought clarity or perpetuated uncertainty surrounding the legal definition of “waters of the U.S.” and how the U.S. Army Corps of Engineers (USACE) and
Environmental Protection Agency (EPA) evaluate permitting applications. Not in question is the anticipated confusion and potential processing delays for current and future project applicants seeking approvals that may impact streams, lakes, wetlands, and other waters.
As the leader of the USACE Regulatory Program following
two previous SCOTUS cases involving wetlands (Rapanos and Northern Cook County), I know how the agencies historically respond to SCOTUS rulings. Specifically, USACE and EPA must develop policy, guidance, and new rules to clarify uncertainties, real or perceived, that the ruling may have created. In this case, the agencies are likely to take the following next steps:
The Court ruled that the current Clean Water Act definition for a “Water of the United States” was not correct. Therefore, among the first things USACE must do is publish procedures for permitting evaluations going forward and for permits that have just been issued, permits in process, and actions that are imminent.
USACE must develop both national and regional procedures for managing permit actions to keep development moving while simultaneously trying to determine if the action is within the new definition for a “water.” Because many permits also require habitat replacement and have potential impacts on endangered species, creating these interagency procedures may be difficult. Overall, crafting these procedures is likely to take even more time than was required after SCOTUS’ Rapanos decision given that case only required the agencies to apply two tests to maintain most of the existing regulatory scope. In my opinion, the Sackett decision significantly upends the current regulatory process so addressing this issue will be more complicated.
USACE and EPA must develop interim guidance on what is considered a “water of the United States”. This process will be complex and require substantial time as the agencies wrestle with difficult ecological realities. Considerations may include identifying what constitutes a seasonal intermittent stream, criteria for wetlands to have a continuous surface connection, and regional differences in both areas. The agencies spent more than a year developing interim guidance after the last Supreme court ruling. This one may be even more complex and could take longer.
USACE and EPA must develop a new regulation on what is considered a “water of the United States.” This is predictably a laborious and time-consuming process. Adding to the challenge is a nation entering into the 2024 election cycle. In my experience, work on regulations is delayed once the primaries start. Traditionally, agencies have paused efforts on regulations until after the election. Therefore, a new rule may not even go out in draft form until 2025.
For applicants seeking to affect or fill streams, lakes, or wetlands, the next 18 months may be spent navigating within a SCOTUS generated permitting fog. I would not be surprised to see case-by-case determinations managed by USACE Districts that require close consultation with the appropriate higher USACE headquarters. The bottom line – patience and diligence should be your guiding lights.
Mark Sudol
Senior Advisor
Prior to joining Dawson & Associates, Mark was Chief of the U.S. Army Corps of Engineers Regulatory Program and oversaw the Corps’ regulatory responses to U.S. Supreme Court’s Rapanos and Northern Cook County decisions.
Comments