The recent U.S. Supreme Court decision in Sackett v. EPA significantly narrows the definition of “waters of the United States” (“WOTUS”) as applicable to wetlands and other adjacent bodies of water under the Clean Water Act (“CWA”). By extension, Sackett has broad impacts to wetlands delineation and mitigation requirements for section 404 permits issued by the U.S. Army Corps of Engineers (“Corps”).[1] Sackett will affect whether section 404 dredge and fill or other CWA permits[2] are required for wetlands and the extent to which mitigation of wetland impacts is required.[3] Under Sackett, wetlands that do not have a “continuous surface connection” to a perennial traditional waterway will no longer be subject to CWA jurisdiction (and section 404 permitting).
On September 8, 2023, the EPA amended the WOTUS regulatory definition to conform with the Sackett decision.[4] However, the change is only in effect in states where the 2023 rule is not being challenged. In those states, including Louisiana and Texas, the pre-2015 rule is in effect in conformity with the Sackett decision. This presents many potential complications because the pre-2015 rule provides more jurisdiction over wetlands than the holding of Sackett allows. Additionally, without the certainty of the final rule change, the Corps, who makes determinations on wetland delineations, could be hesitant to make new jurisdictional determinations until pending litigation is resolved and the new rule can be applied.
Sackett v. EPA Decision
Prior to the Sackett decision, the WOTUS definition and Corps rules were based on the decision in Rapanos v. U.S.[5] In that case, the Court could not reach a majority on its holding, and a total of five opinions were entered in the case. Thus, the definition of WOTUS was based on Justice Anthony Kennedy’s concurring opinion. The Kennedy concurrence provided two standards: a wetland could be considered a “water of the United States” if it had either a “continuous surface connection” to a traditional navigable water or if it had a “significant nexus” to “waters of the United States.” Wetlands could be subject to CWA jurisdiction even when there was no indication of surface water present, no high-water table, and no saturated soil. Jurisdictional determinations could be based on the presence of certain soil characteristics and vegetation (factors that were widely used in the “significant nexus” test).
In Sackett, the Court eliminated the use of the “significant nexus” test, but retained the continuous surface connection standard. The Sackett Court also established a two-step analysis to determine whether wetlands or other adjacent waters are subject to CWA requirements:
- Does the adjacent body of water constitute “waters of the United States” (a relatively permanent body of water connected to traditional interstate navigable waters) within the meaning of the CWA?
- If so, does the wetland or secondary water at issue have a “continuous surface connection” with that traditional water?[6]
Effects on CWA Approved Jurisdictional Determinations
The Sackett decision’s two step “continuous surface connection” test will necessarily affect jurisdictional determinations for pending permits primarily in the following four key ways:
- “Perennial” bodies of water, such as the Mississippi River or other rivers and lakes in Louisiana, will be classified as a traditional navigable body of water, passing “step 1” of the Sackett test.[7]
- Wetlands and other water bodies, such as drainage canals, that have a direct connection to perennial waters will pass “step 2” of the Sackett test. These wetlands and waterbodies will still be subject to CWA jurisdiction.
- Wetlands and water bodies where the surface connection to a traditional perennial waterway is interrupted by land or another barrier, such as a levee or road,[8] may no longer be classified as jurisdictional wetlands based on Sackett, but will require the two-step analysis to make that determination.
- Wetlands and areas that have a continuous surface connection that is interrupted periodically due to factors such as low tides, seasonal changes, or drought conditions, but that exists for at least some time during a year, may still be under CWA jurisdiction.[9]
September 2023 Conforming Rule
After the Sackett decision was released by the Court, the Corps halted all approved jurisdictional determinations (“AJDs”)[10] until the U.S. Environmental Protection Agency (“EPA”) could amend the WOTUS rule in conformity with the Court’s decision (“the Conforming Rule”). On August 29, 2023, the EPA released a revision to the January 2023 rule to conform with the Sackett decision, which became effective on September 8.[11] The new rule revised the 2023 rule in conformity with the Sackett decision. Namely, the new rule made the following changes:
- Removed the phrase “including interstate wetlands” from 40 CFR 120.2(a)(1)(iii) and 33 CFR 328.3(a)(1)(iii).
- Removed the significant nexus standard from the tributaries provisions in 40 CFR 120.2(a)(3) and 33 CFR 328.3(a)(3).
- Removed the significant nexus standard from the adjacent wetlands provisions in 40 CFR 120.2(a)(4) and 33 CFR 328.3(a)(4).
- Removed the significant nexus standard and streams and wetlands from the provision for intrastate lakes and ponds, streams, or wetlands not otherwise identified in the definition contained in 40 CFR 120.2(a)(5) and 33 CFR 328.3(a)(5).
- Removed the term “significantly affect” and its definition in its entirety from 40 CFR 120.2(c)(6) and 33 CFR 328.3(c)(6).
- Revised the definition of “adjacent” under 40 CFR 120.2(c)(2) and 33 CFR 328.3(c)(2).[12]
Dueling Regulatory Standards
Importantly, the Conforming Rule only applies in states where the January 2023 definition was enjoined, or became final (see map below). In the remaining 27 states, including Louisiana and Texas, the January 2023 rule was challenged in court and is subject to injunction. For these states, the EPA has stated that the pre-2015 WOTUS definition will apply along with the holding of the Sackett decision “until further notice.”[13]
The EPA has not clarified how this “modified” pre-2015 definition differs from the conforming rule, which is especially concerning since the purpose of the Conforming Rule was to implement the Sackett decision. While there is no question that Sackett necessarily affects jurisdictional determinations rendered by the Corps, the EPA has not specified exactly how it will modify the pre-2015 standard. Specifically, the pre-2015 standard provided for CWA jurisdiction over all interstate wetlands.[14] Perhaps the best illustration of this point is that the case giving rise to the Sackett decision itself involved a jurisdictional determination made in 2007 using the pre-2015 rule.
Post-Sackett WOTUS Outlook
While Sackett significantly clarifies the process for wetland delineation, the decision still contains gray areas. For one, the Court stopped short of defining a “continuous surface connection.” Instead, it characterized it as a connection “making it difficult to determine where the water ends and the wetland begins.”[15] Second, the majority opinion noted that there could be exceptions where the connection does not exist for a portion of the year, but the connection would still be viewed as continuous. (“We also acknowledge that temporary interruptions in surface connection may sometimes occur because of phenomena like low tides or dry spells.”[16]) So, if a wetland is connected only seasonally or intermittently to relatively permanent waters, AJDs will still require a case-by-case determination.
The Conforming Rule incorporates the key holdings of Sackett, but stops short of discussing “gray areas” where the decision lacks specificity. Notably, the EPA did not allow an opportunity for comment on the final rule, using the “good cause” provision of the Administrative Procedure Act (“APA”) to justify the move because the Conforming Rule “does not impose any burdens on the regulated community.”[17] And the Biden Administration stated in its initial response to the decision that it intends to use other legal authorities to fill the alleged regulatory gap.[18] Without clarity in the Conforming Rule on areas such as the degree of surface connection, the EPA and Corps could use other regulatory devices, such as guidance documents, to add requirements where the Sackett decision is silent.
Effects on Section 404 Permitting
The Corps has stated and that it is willing to reconsider prior AJDs based on the new standards in the Sackett decision[19] and that it will resume issuing AJDs now that the new Conforming Rule has been issued.[20] But the dueling regulatory standards between states could result in continued delays for AJDs in states where the Conforming Rule isn’t in effect. At least one effected Corps district has placed all AJDs on indefinite hold.[21] And, even in states where the Conforming Rule is in effect, there is currently no regulatory test or guidance on how the factors such as what degree of continuity in a surface connection will be sufficient for CWA jurisdiction under the Conforming Rule. As a result, permit applicants may continue to experience delays on wetland AJDs for permit applications until litigation on the January 2023 rule can be resolved.
[1] CWA Section 404 requires permits for the discharge of dredged or fill material into waters of the United States, including wetlands. Activities regulated under this program include fill for development, water resource projects (such as dams and levees), infrastructure development (such as highways and airports), and mining projects. A permit from the Corps is required before dredged or fill material may be discharged into a water of the United States, unless the activity is exempt from Section 404 (such as certain farming and forestry activities). U.S. Env’t Prot. Agency, “Permit Program under CWA Section 404” (March 31, 2023), available at https://www.epa.gov/cwa-404/permit-program-under-cwa-section-404.
[2] The WOTUS rule also affects permitting under the following CWA sections and programs: Section 303(c), Water Quality Standards; Section 303(d), Impaired Waters and Total Maximum Daily Loads (TMDLs); Section 311, Oil Spill Prevention and Preparedness; Section 401 Certification; and Section 402, National Pollutant Discharge Elimination System (NPDES).
[3] Sackett v. Envtl. Prot. Agency, 598 U.S. 651, 143 S. Ct. 1322 (May 25, 2023).
[4] 88 Fed. Reg. 61964 (September 8, 2023).
[5] Rapanos v. U.S., 547 U.S. 715 (2006).
[6] 143 S. Ct. at 1341.
[7] See Envtl. Prot. Agency, National Hydrography Dataset: Streams and Waterbodies in Louisiana (January 19, 2021), available at https://19january2021snapshot.epa.gov/sites/static/files/2014-09/documents/louisiana.pdf.
[8] Sackett, 143 S. Ct. at 1368 (J. Kavanaugh, concurring): “For example, the Mississippi River features an extensive levee system to prevent flooding. Under the Court’s ‘continuous surface connection’ test, the presence of those levees (the equivalent of a dike) would seemingly preclude Clean Water Act coverage of adjacent wetlands on the other side of the levees, even though the adjacent wetlands are often an important part of the flood-control project.”
[9] Id. at 1341 (“[w]e also acknowledge that temporary interruptions in surface connection may sometimes occur because of phenomena like low tides or dry spells”).
[10] AJDs are determinations made by the Corps on whether a reviewed area is subject to CWA jurisdiction. 33 C.F.R. 331.2.
[11] 88 Fed. Reg. 61964 (September 8, 2023).
[12] Id. See also “Regulatory Text Changes to the Definition of Waters of the United States at 33 CFR 328.3 and 40 CFR 120.2” (Aug. 14, 2023), available at https://www.epa.gov/system/files/documents/2023-08/Regulatory Text Changes to the Definition of Waters of the United States at 33 CFR 328.3 and 40 CFR 120.2.pdf.
[13] Envtl. Prot. Agency, Pre-2015 Regulatory Regime, available at https://www.epa.gov/wotus/pre-2015-regulatory-regime.
[14] 40 C.F.R. § 230.3(s)(2) (2015).
[15] Sackett, 143 S. Ct. at 1341.
[16] Id.
[17] 88 Fed. Reg. 61965 (September 8, 2023), citing 5 U.S.C. § 553(d)(3).
[18] The White House, Press Release, Statement from President Joe Biden on Supreme Court Decision in Sackett v. EPA, (May 25, 2023), available at https://www.whitehouse.gov/briefing-room/statements-releases/2023/05/25/statement-from-president-joe-biden-on-supreme-court-decision-in-sackett-v-epa/.
[19] Lewis v. United States Army Corps of Engineers, No. CV 21-937, 2023 WL 3949124, at *1 (E.D. La. June 12, 2023).
[20] U.S. Army Corps of Eng’rs Headquarters, Press Release, EPA and the Army Issue Final Rule to Amend 2023 Rule (September 8, 2023), available at https://www.usace.army.mil/Media/Announcements/Article/3520843/8-september-2023-epa-and-the-army-issue-final-rule-to-amend-2023-rule/.
[21] U.S. Army Corps of Eng’rs, Chicago District, Approved Jurisdictional Determinations, available at https://www.lrc.usace.army.mil/Missions/Regulatory/Jurisdictional-Determinations/ (last visited September 22, 2023).
