EPA, along with the U.S. Army Corps of Engineers, announced new guidance on what qualifies as “waters of the United States” (WOTUS) in light of the Supreme Court’s Sackett decision. The agencies also announced the publication of a notice in the Federal Register that they will be conducting public listening sessions to gather input from stakeholders on “defining ‘waters of the United States’ consistent with the Supreme Court’s interpretation of the scope of Clean Water Act jurisdiction and how to implement that interpretation”.
Assessing wetlands
The Clean Water Act (CWA) gave the Federal Government the power to regulate development affecting Waters of the United States. However, what constitutes Waters of the United States has been interpreted differently at different times. The problem is most acute with regard to when a wetland is part of WOTUS.
In the Sackett case, the U.S. Army Corps of Engineers attempted to control what the Sacketts could do with their property because it had a seasonal wetland on it. However, that wetland had no physical connection with any other body of water, so it was a stretch to say that it was part of WOTUS. The Supreme Court ultimately said that it was not, ruling that, in order to be considered part of WOTUS, a wetland must have a continuous surface connection to a body of water that is part of WOTUS.
In response to the Court’s ruling, the Biden EPA issued revised guidance. However, that guidance said that a wetland would be considered part of WOTUS if it had a “relatively” permanent connection to a body of water that is part of WOTUS. It also said that the connection could be established by a non-natural feature like a ditch or a culvert.
The new guidance asserts that it is more closely conforming to the Sackett ruling. It states, “In summary, the Supreme Court in Sackett provided a clear two-part test for determining CWA jurisdiction over adjacent wetlands. First, the adjacent body of water must be a “water of the United States,” which generally means traditional navigable waters, or a relatively permanent body of water connected to a traditional navigable water. Second, the wetland, assuming it satisfies the agencies’ longstanding regulatory definition of “wetlands” at 33 C.F.R. 328.3 and 40 C.F.R. 120.2, must have a continuous surface connection to a requisite covered water making it difficult to determine where the water ends and wetland begins.”
Industry reaction
In response to the new guidance, – Buddy Hughes, chairman of the National Association of Home Builders (NAHB) and a home builder and developer from Lexington, N.C. issued a statement saying, “NAHB commends the EPA for moving to make changes to the WOTUS rule that will protect our nation’s waterways and provide builders and developers the clarity and certainty they need in the federal wetlands permitting process to help house America’s citizens. Obtaining a Clean Water Act Section 404 permit under WOTUS can take upwards of a year, and these permitting delays put home building projects on hold and increase construction costs. Today’s action by the EPA will help alleviate federal permitting roadblocks that are exacerbating the nation’s housing affordability crisis.”
