More than a month has passed since the US Supreme Court’s Sackett decision impacting federal Waters of the US (WOTUS) rules used in the federal environmental permitting process.
From discussions within the permitting stakeholder community, we understand that the US Army Corps of Engineers is delaying decisions on permits involving water jurisdictions because of the uncertainty in applying the Sackett decision. However, there are also indications that the Corps recently began issuing Approved Jurisdictional Determinations (AJDs) involving dry land and excluded waters and thus moving permits forward.
Invariably, permit applicants and those drafting permits ask, “What does this regulatory uncertainty mean for our project?” The answer is typically complicated and project dependent. Still, here is what you should keep in mind:
There is growing pressure on the Corps to issue jurisdictional decisions on waters before September 1, 2023, the date when the proposed new Waters of the US rules take effect. Much of the construction efforts under jurisdiction of the Corps within wetlands and waters are effectively on hold until applicants receive a Corps decision. In the interim, it is important to communicate regularly, and preferably in person, with the appropriate local Corps officials to try to understand the situation, including alternate options, in the project’s area.
If a project impacts wetlands and waters that would be considered jurisdictional in a post-Sackett world, you should look into a provisional jurisdictional determination (PJD). A PJD can be used to assume wetlands and waters on your site areas are under Corps authority and allow your project to move forward. Without a PJD, permit processing will likely not start until sometime after September 2023.
If your project impacts a category of waters that will likely not be jurisdictional under the new WOTUS rules, a good plan is to communicate directly with local Corps officials to determine your options. Some Districts in arid regions have the authority to issue AJDs now. In my experience, most “water” jurisdictional status decisions are managed on an individual basis in each District. This is because while the Supreme Court guidance is relatively clear, there are regional and physical differences that make the Corps’ decisions more complex. Corps’ permit managers can assist and provide guidance.
In areas where there remains uncertainty about jurisdictional wetlands and waters or you have a large site with different categories of waters, you almost certainly need extensive communication with Corps District officials. These personnel are a key resource. As such, it’s prudent to listen carefully to what they say.
In terms of next steps on a formal rule post-Sackett, the EPA and the Corps will likely remove “significant nexus” and other ecological factors that SCOTUS struck down. Based on my experience with previous High Court-ordered regulatory changes, I expect the following classes of “waters” will no longer be jurisdictional:
Isolated wetlands that do not have a continuous surface connection to a traditional navigable water to include most:
Streams that do not have relatively permanent flows of water to include:
Most ephemeral streams
Some intermittent streams
I expect the following “waters” will either be considered fully jurisdictional under the Corps’ authority or at least questionable and would require additional evaluation:
Territorial seas and oceans
Navigable streams and rivers
Wetlands with a continuous surface connection to a traditional downstream navigable water
Ditches that have water flowing continuously that connect to a traditional navigable water
Some intermittent streams that connect to a traditional navigable water
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.