The EPA released a new guidance document clarifying its interpretation of the U.S. Supreme Court’s Sackett case decision. In short, wetlands must now have a continuous surface connection (through other wetlands) to jurisdictional waters to be considered “adjacent” and subject to protection under the federal Clean Water Act. The Sackett ruling clearly limits federal jurisdiction to relatively permanent, standing, or continuously flowing bodies of water that form geographic features—such as streams, rivers, lakes, and oceans—and those wetlands with a direct surface connection to them, where the boundary between the wetland and the water is difficult to distinguish.
The new guidance rescinds prior documents that had interpreted connectivity more broadly, including connections via man-made or ephemeral (precipitation related) conveyances—an interpretation that had previously led to uncertainty across the industry.
This document reaffirms that only wetlands meeting the adjacency test are jurisdictional at the federal level. While there remains the possibility for some variance between agency and district interpretation and implementation of the new policies, this guidance appears to be more aligned with the language of the Sackett decision. As a result, many of the woodland wetlands commonly encountered in southeastern Virginia and northeastern North Carolina may no longer be under federal jurisdiction. All wetlands and waters in Virginia remain regulated by the Commonwealth, while North Carolina only has jurisdiction over wetlands that also fall under federal jurisdiction.
At present, the Virginia Department of Environmental Quality (DEQ) continues to evaluate wetlands under the criteria established in the 1987 Wetland Delineation Manual and applicable regional supplements issued by the U.S. Army Corps of Engineers. MSA actively works with the State and is currently seeking further clarification on how the DEQ will operate under the Sackett ruling. Accurate, well-documented, and defensible delineations remain as important as ever. MSA will continue to coordinate closely with both the Corps and DEQ to ensure our work reflects current guidance and supports the best possible outcomes for our clients and project stakeholders.
Tags: Wetlands