On May 25, 2023, the Supreme Court of the United States (SCOTUS) issued a ruling on the case of Sackett, et.ux v. Environmental Protection Agency, et.al. The ruling represents yet another rung on the seemingly never-ending ladder leading to the definition of waters of the US (WOTUS). Wetlands continue to be the primary focus, with the new ruling limiting which wetlands would be protected under the Clean Water Act (CWA).
Why Should I Care?
The WOTUS definition defines which waters are protected under the CWA. Several regulations that environmental professionals frequently navigate rely on the WOTUS definition. If you find yourself pondering these questions and concepts, then this ruling is critical to understand:
- Will our new construction site trigger Section 404 permitting through the US Army Corps of Engineers (USACE) due to the presence of wetlands?
- My facility’s stormwater and/or wastewater outfalls discharge to a wetland. Is this wetland still considered under the definition of WOTUS? Does this SCOTUS decision impact my National Pollutant Discharge Elimination System (NPDES) permits?
- My facility has prepared a Spill Prevention, Control, and Countermeasure (SPCC) Plan due to having a reasonable potential for an oil spill to reach a wetland. Is a SPCC Plan still necessary?
- My facility has the potential to cause “substantial harm” due to the presence of a wetland near our property. Does our facility still need to prepare and implement a Facility Response Plan (FRP) under the new SCOTUS decision?
- I have a wetland near my property. Are spills of oils, CWA hazardous substances, and CERCLA chemicals to this wetland reportable to the National Response Center?
Decision Summary
In a unanimous ruling, (with Justice Alito writing on behalf of a 5-judge majority) SCOTUS essentially rolled back the definition of WOTUS to that presented in the Antonin Scalia plurality opinion in the Rapanos ruling (US. V. Rapanos, 2006). This opinion defined WOTUS very narrowly to include only relatively permanent, standing or continuously flowing bodies of water such as streams, oceans, rivers, and lakes. He further contended that WOTUS should not include ordinarily dry channels through which water occasionally or intermittently flows. The wetlands on the Sackett property were near a ditch that fed into a creek, which fed into Priest Lake (a navigable, intrastate lake). All nine justices agreed that the Sackett’s wetlands did not meet the definition of WOTUS; more impactful though, a 5-judge majority narrowed the definition of WOTUS as it pertains to wetlands.
In his majority opinion, Justice Alito picked up on Scalia’s definition and added further context. As outlined in the SCOTUS decision, the adopted definition of WOTUS would be as follows;
“waters of the United States” includes only relatively permanent, standing or continuously flowing bodies of water, such as streams, oceans, rivers, lakes – and wetlands that have a continuous surface connection with and are indistinguishably part of such water bodies.
The key aspect of the SCOTUS decision is the departure from the “significant nexus” provision introduced by Justice Kennedy in the Rapanos case ruling. The significant nexus provision had been, up until now, the technical backbone relied upon during jurisdictional delineations to support exclusions of certain water features from the definition of WOTUS. This was also an essential part of the 2007 guidance issued by the US Army Corps of Engineers (USACE) and the Environmental Protection Agency (EPA) following the Rapanos ruling. The new critical element for a wetland to be covered under the CWA is the presence of a continuous surface connection with a permanent, standing, or continuous flowing body of water (i.e., streams, oceans, rivers, and lakes). This is a much higher standard for a wetland to achieve, ultimately resulting in more wetlands not being protected under the CWA.
Next Steps
The EPA has recently updated their website to indicate that the agency will interpret WOTUS in a manner consistent with the SCOTUS decision. It also states that the agencies (EPA and USACE) will continue to review the decision to determine the next steps.
We anticipate that the next steps will include issuing guidance which includes parameters (e.g., surface hydrology, stream flow, indicators, etc.) to be identified or documented to support jurisdictional determinations and potential exclusions from the current definition of WOTUS.
Trinity will continue to monitor developments as the agencies develop guidance at the federal level. At the state level, we will continue to monitor state-specific permitting programs (e.g., non-federal wetlands permits) to identify any changes.
This may represent a good juncture for some companies to revisit existing jurisdictional delineations and agency decisions in light of the new definition. Based on the history of changes to the WOTUS definition, it is not clear how long this opportunity may last.
Feel free to contact Jose Orsini, Josh Haar, or your local Trinity Office (866.830.0796) if you wish to obtain additional information or wish to discuss how this decision may affect any of your ongoing or proposed projects.
