The EPA has released a guidance document clarifying their position on the interpretation of the US Supreme Court Sackett case. Basically, wetlands must have a continuous surface connection (via other wetlands) to a jurisdictional waters to be considered “adjacent” and under federal Clean Water Act protection. The Sackett case pretty clearly states that federal jurisdiction is limited to relatively permanent, standing or continuous flowing bodies of water forming geographic features such as streams rivers, lakes and oceans (these are the Waters of the US) and those wetlands connected to such by a continuous surface connection such that the boundary between the wetland and waters is difficult to distinguish. Previously the EPA had used that definition to justify calling every defined conveyance, whether man-made or natural as establishing that connection, and it was an industry-wide mystery how they reached that conclusion.
Now this newly released memo explicitly rescinds prior guidance documents on connections of wetlands to waters, with only the adjacency test remaining. We all know that it is not what the regulations say, but rather how they are interpreted at the local level that really matters. But from the read of this new guidance document, it seems to be more in line with the actual language in Sackett. This means that most of our common woodland wetlands may no longer fall under federal jurisdiction. However, all wetlands / waters within Virginia are still regulated by the State. As of now, the DEQ is clear in that it considers wetlands under the same criteria as the 1987 manual and regional supplements that the Corps of Engineers has issued. However there may be opportunity for a more reasonable approach in how these are interpreted. In light of this, I am coordinating with the State for further clarification on their expectations.
Creating an accurate, well documented and defensible delineation is just as critical now as it ever was. MSA will continue to coordinate with the Corps and DEQ in this changing political landscape to insure the accuracy of our work and the best outcomes for our clients and protect the interests of stakeholders in this industry.
Tags: Wetlands