As we approach the waning days of 2023, what better time to reflect on what has been touted as the biggest upheaval to the world of WOTUS in decades. The Supreme Court’s Sackett decision, handed down on May 25, 2023, was simultaneously met by some with praise for curbing government overreach and others with criticism that it will decimate wetlands protections across the country. More than six months later, both sides may be asking, “Where are we now?”
First, let’s look at how we got here. In early 2001, the Supreme Court ruling in the case of Solid Waste Agency of Northern Cook County (SWANCC) vs the Corps/EPA launched an era of uncertainty that continues today. For good or bad, the Supreme Court threw out the bright line of jurisdiction that was the migratory bird rule. Since that time, the line defining a Water of the United States (WOTUS) has been fuzzy at best. This year’s Sackett decision perpetuates a series of actions trying to clarify and focus the line.
In short, the Sackett decision threw out the concept of “significant nexus,” a term interestingly proposed by the Supreme Court’s Carabell-Rapanos decision in 2006. There were many problems with this test including that this term’s definition could vary depending on how an official interpreted it.
While the Sackett decision threw out the nexus concept and attempted to narrow the uncertainty, it’s too early to label it a success. Terms such as “relatively permanent” and “continuously flowing” remain vague and ill-defined. The agencies issued a revised rule implementing the Sackett decision on August 29, 2023. However, intended or not, this rule did little to expand on these uncertain terms and provided no additional guidance or explanation.
Adding more complexity to this issue, on November 13, 2023 West Virgina and 23 other states along with several private groups filed a lawsuit in North Dakota federal court seeking to set aside the August WOTUS rule as failing to address Sackett and violating statutory and constitutional provisions. The lawsuit argues the rule fails to provide clear criteria for relatively permanent streams and wetlands that are indistinguishable from adjacent waters.
Industry confusion surrounding WOTUS continues to be fueled by a lack of understanding about exactly how the agencies process permits and issue decisions on jurisdictional issues. The regulated community has not seen evidence of publicly available Corps guidance to their regulators.
In my estimation, geographic Corps Districts are doing their best to make procedural decisions on how to process and prioritize permits and jurisdictional determinations with internal assets and local policies. Unfortunately, this approach has the potential of creating wide variations in how Districts make decisions and prioritize work. I understand some, but not all, Corps Districts have adopted various criteria to govern when an applicant can request a revised jurisdictional determination. Examples include:
Permits with existing pre-Sackett jurisdictional determinations but work has not commenced, therefore they can request a review.
Permits under review with an existing jurisdictional determination pre-Sackett that may change based on new rules.
New permit applications and requests for jurisdictional determinations post-Sackett.
Implementing new government policy is not a trivial undertaking and six months is a relatively short time to effect change on an issue with such a long history of complexity and controversy. Today, the regulatory landscape six months post-Sackett is littered with delays and uncertainty for applicants seeking Clean Water Act permits.
Having access to clear and consistent publicly available implementing policy would likely help mitigate the frustration many applicants are experiencing. That said, it’s also possible the Sackett decision will ultimately be just one more nebulous waypoint guiding us through an enduring era of persistent regulatory uncertainty.
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.