By Taya MacLean, PWS
On May 25, 2023, the U.S. Supreme Court issued its decision in the case of Sackett v. Environmental Protection Agency (EPA), narrowing the interpretation of federal waters of the United States (WOTUS). Specifically, the court determined that wetlands on the Sackett property, located in northern Idaho, were not subject to federal Clean Water Act (CWA) regulations because they are “distinguishable” from any other jurisdictional water. Per this decision, only those adjacent wetlands that are directly touching or have a continuous surface connection to a relatively permanent water or “distinguishable” are considered WOTUS. In addition, the decision abandons the existing significant nexus test for adjacent wetland. Considering this decision, the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (USACE) will interpret the phrase “Waters of the United States” consistent with the Supreme Court’s decision in Sackett.
How Does this New Ruling Affect Your Project?
We anticipate further clarification from the courts, the USACE, and the EPA on how this new decision will be implemented under Section 404 of the Clean Water Act. However, until there is clarification, there will be uncertainty around the definition of WOTUS. States and local jurisdictions will also be considering how this affects their management of wetlands and waters. If you have a current or potential project that may impact wetlands, streams, lakes, or other aquatic resources that lack a continuous surface connection to other waters (isolated, not adjacent), you may not need to apply for a Clean Water Act Section 404 permit with the USACE. If there is concern over whether a wetland or water is in fact a water of the U.S., you may consider applying for an approved jurisdictional determination from the USACE to verify federal jurisdictional status. Also, a state or local permit may still be required.
How are Waters of the United States Defined in Your State?
On December 30, 2022, the EPA and the USACE announced the final "Revised Definition of WOTUS” rule. On Jan. 18, 2023, the rule was published in the Federal Register and became effective on March 20, 2023. However, because of ongoing litigation by 27 states, the agencies interpreted WOTUS consistent with the pre-2015 regulatory regime in 27 states until further notice. WOTUS in all other states are subject to the 2023 rule, until the agencies undergo rule making again to reflect the Sackett decision.
Check out this graphic from EPA to see how WOTUS is defined in your state.
Many states and local jurisdictions have additional regulations and may require permitting and/or setbacks from aquatic resources. Unique considerations at the state level for the regulation of waters, including wetlands, not regulated federally are described below.
NOTE: State wetland and water protection programs are rapidly evolving and agencies with jurisdiction over your project should be consulted to verify jurisdictional status of aquatic resources and associated laws.
The Washington State Department of Ecology (Ecology) has typically worked with federal agencies to streamline environmental permitting for waters under federal oversight. Ecology regulates waters, including isolated wetlands, that will not receive federal protections under the Sackett v. EPA ruling. The state’s Water Pollution Control Act of 1945 — along with other state laws — has always provided greater protections for these waterbodies than federal regulations. Ecology will now use the same process it does for other waters that have state but not federal protections. For non-federally regulated wetlands, applicants must submit a request for an Administrative Order to comply with the state Water Pollution Control Act (Chapter 90.48 RCW) for all projects that impact any wetlands or waters that do not have federal protection following the Sackett v. WPA ruling. Ecology is planning to expand staff resources to oversee the additional workload required for review of development proposals and will then issue administrative orders to approve or condition a project before work can begin.
Ecology also issues Clean Water Act Section 401 water quality certifications when a USACE Section 404 permit is required for impacts to WOTUS.
The Oregon Department of State Lands (DSL) oversees Oregon’s Removal-Fill Law and permitting process. This law currently provides protections for wetlands not jurisdictional to the USACE. Therefore, Oregon’s wetland protections remain unchanged and firmly in place and will not be affected by the Sackett v. EPA ruling.
Oregon Department of Environmental Quality also issues Clean Water Act Section 401 water quality certifications when a USACE Section 404 permit is required for impacts to WOTUS.
The state relies primarily on Idaho Department of Environmental Quality (IDEQ) to issue Clean Water Act Section 401 water quality certification to regulate impacts to federally regulated WOTUS. However, wetlands may also be regulated under two additional water-related laws: the Idaho Lake Protection Act and the Idaho Stream Channel Protection Act. Under the Idaho Lake Protection Act, applicants that intend to work on or above the lakebed, below the ordinary high-water mark, and occasionally within adjacent wetlands, must obtain a permit from the Idaho Department of Lands (IDL). Idaho Department of Water Resources (IDWR) administers the Idaho Stream Channel Protection Act which requires a Stream Alteration Permit for alterations to stream channels below the ordinary high-water mark. Wetlands adjacent to streams may still be covered under state laws. However, wetlands or other waters that lack a surface connection to WOTUS do not receive protections under state laws and therefore may not be protected at the state or federal level following the Sackett v. EPA ruling.
Additionally, Idaho’s Department of Fish and Game (IDFG) is the lead state agency concerning wetland issues and management because of the importance of wetlands and waters to the Department’s species protection efforts. This agency leads a statewide initiative to establish coordination on wetland issues among a wide variety of stakeholders, including state agencies.
The Utah Division of Water Quality (DWQ) issues Clean Water Act Section 401 water quality certification to regulate impacts to federally regulated WOTUS. This ensures that federally permitted or licensed activities, including Section 404 permits issued by the USACE, will be conducted in a manner that will comply with applicable Utah discharge and water quality requirements in order to maintain the chemical, physical, and biological integrity of waters affected by the project.
A Stream Alteration Permit from the Utah Division of Water Rights is required for any activity that will alter the bed or banks of a natural stream. Wetlands adjacent to streams may or may not be covered under state laws. However, wetlands or other waters that lack a surface connection to WOTUS do not receive protections under state laws and therefore may not be protected at the state or federal level following the Sackett v. EPA ruling.
The Nevada Division of Environmental Protection's Bureau of Water Quality Planning oversees wetlands under the state's water quality certification authority under Section 401 of the Clean Water Act. Nevada does not currently have a comprehensive wetlands-protection program but follows Federal policy and cooperates in many Federal programs. Without a state wetland program, wetlands and waters not receiving federal protections following the Sackett v. EPA decision may not require a permit.
The primary mechanism for California's regulation of wetland development is the Porter-Cologne Act which regulates discharges into ‘waters of the state’. California's definition of these waters is broad and is based on the 1986 federal rules. The state will continue to protect wetlands and waters which may no longer be jurisdictional to the USACE following the Sackett v. EPA decision. Anyone seeking to develop or discharge into waters of the state will need a permit from one or more state agencies, potentially including the State Water Board, Regional Water Boards, the Department of Fish and Wildlife, the Coastal Commission, and other agencies.
New Mexico Environment Department’s Surface Water Quality Bureau (SWQB) regulates wetlands through issuing Clean Water Act Section 401 Water Quality Certification for projects requiring a permit form USACE under Section 404 of the Clean Water Act.
The New Mexico Environment Department is looking at creating a surface water permitting program in light of the Sackett v. EPA ruling; however, rulemaking will take at least six years to fully develop a state wetland and waters program to implement rules for state protection of surface waters.
Parametrix can Assess Waters of the United States
We can assist you in navigating WOTUS rules! Please contact us if you have questions.
About the Author
Taya MacLean, PWS is a Senior Scientist based in Portland, OR. She has over 20 years of experience managing natural resources throughout the western United States. Taya is a Professional Wetland Scientist and holds a Master of Science in Biology from California State University.