Redefining the “waters of the United States”

Sackett v. United States Environmental Protection Agency

On August 29, 2023 the US Environmental Protection Agency (EPA) and the US Department of the Army issued a new final conforming rule that revised the definition of “waters of the United States” to adhere to the Supreme Court’s ruling in Sackett v. EPA. EPA limited the scope of the rule amendment to those parts of the January 18, 2023 rule that are invalid under the Sackett v. EPA decision. For example, the new rule removes the significant nexus test from consideration when identifying tributaries and other waters as federally protected. It also revised the definition of adjacent to mean “having a continuous surface connection” and removed the term interstate wetlands.

Despite the changes to the federal rule, Washington State law fills the gap in wetland regulation at both state and local levels. Washington currently doesn’t require landowners to obtain a state permit if Federal Clean Water Act permitting is required, except through the 401 water quality certification process. However, with the Sackett Decision, far more wetlands will require state permits, which creates additional challenges because this process has rarely been used until now. The Washington State Department of Ecology has announced that they plan to begin work on a state program similar to the federal Nationwide Permit, to streamline wetland permitting, but it may be several years before this option is available.

The State of Oregon protects wetlands under the 1967 Removal Fill Act. Unlike Washington, Oregon has required anyone impacting a wetland to obtain a state permit in addition to their federal permits. That requirement isn’t expected to change, but many landowners may now be able to forego federal permitting.

As trusted advisors, Landau will continue to provide guidance to our clients to help them navigate the new regulatory environment during this time of uncertainty.

“Wetland regulation is constantly changing, but this is a big upset to the way we approached project permitting. We have to be ready for continued change as the US Army Corps of Engineers and EPA refine how they implement this new rule,” says Landau’s principal natural resources scientist, Jennifer Wynkoop. “Landau’s goal is to remain nimble and help our clients manage and mitigate risk as it relates to permitting under the Clean Water Act.”

Have questions about a current or upcoming project? Contact Landau to connect with our ecologists.

Interested in learning more about the new EPA ruling? Check out their fact sheet or sign up for an informational webinar at this link: Amendments to the 2023 Rule | US EPA.