WOTUS Defined: How Will the Supreme Court’s Ruling on Sackett v. EPA et al. Affect You?
On May 25, 2023, the Supreme Court of the United States ruled on Sackett v. Environmental Protection Agency et al. which changes how “Waters of the United States” (WOTUS) are defined.
“Significant Nexus” No Longer Applies to WOTUS Determinations
The first major change to WOTUS jurisdiction is the removal of the “significant nexus” determination, which stated any water body (stream, pond, wetland, etc.) was determined to be a WOTUS if the water body significantly affects the chemical, physical, or biological integrity of downstream traditional navigable waters, the territorial seas, or interstate waters. “Significant nexus” will no longer be considered for jurisdictional status of water bodies.
New Criteria for Jurisdictional WOTUS
For a water body to be considered a jurisdictional WOTUS, it must be a relatively permanent water (RPW) with a downstream connection to a traditionally navigable water.
Requirements for Wetlands Adjacent to RPWs
For wetlands adjacent to RPWs, the court stated that “a party must establish:
- First, that the adjacent [body of water constitutes] . . . ‘water[s] of the United States’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters)
- Second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”
Defining Jurisdictional Waters and Wetlands Under the New Rule
To summarize the ruling, for a water body to be considered a jurisdictional WOTUS, the water body must be a RPW that flows uninterrupted downstream to a Traditionally Navigable Water.
For wetlands to be considered WOTUS, they must have an indistinguishable continuous surface water connection to the RPW. This means wetlands adjacent to RPWs with no identifiable continuous surface water connection would not be considered jurisdictional WOTUS.
Regulatory Review and Delays
The federal regulatory agencies (USACE/EPA) are currently reviewing the decision and determining the next steps. The development of jurisdiction guidance by the USACE in response to the court ruling is not a rapid process, and delays in the issuance of jurisdictional determinations (JDs) should be expected. There is essentially a pause in the review process for JDs and federal permits until the USACE and EPA develop guidance to best interpret the ruling.
How Will This Affect Wetlands in Ohio?
Any wetlands without an indistinguishable, continuous surface water connection to a relatively permanent water will no longer be considered WOTUS and will not fall under the jurisdiction of the US Army Corps of Engineers (USACE).
As it stands, this means that a Nationwide Permit or Individual Permit from the USACE will not be required to fill these specific wetlands as they are no longer considered jurisdictional WOTUS.
State Jurisdiction for Non-Federal Wetlands in Ohio
However, in Ohio, the Ohio EPA currently claims jurisdiction of any wetlands that are not considered jurisdictional WOTUS, under the Ohio EPA’s Isolated Wetland Program. The wetlands not protected by the USACE are therefore considered “Waters of the State” and require an Isolated Wetland Permit from the Ohio EPA which requires mitigation for all proposed impacts.
Partner with EDG for Wetland Assessments and Regulatory Support
It is still necessary to perform a wetland delineation for projects and apply for a Jurisdictional Determination from the USACE to determine which (if any) wetlands would be considered WOTUS.
Environmental Design Group professionals are available to answer any questions or concerns you may have regarding any current or future projects that involve wetlands or other surface waters to best guide you through the permitting process. Projects that have previously received a federal permit (prior to May 25, 2023) do not need to reapply for a permit.
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