EPA Issues Immediate Change to Which Wetlands Fall Under Federal Scope

In a response to the U.S. Supreme Court’s decision in Sackett v. EPA earlier this year, the EPA recently issued an immediate final rule revising the definition of “Waters of the United States” (WOTUS) to conform to the Supreme Court’s opinion.

Sackett held that for a wetland, tributary or other non-navigable water to be subject to federal jurisdiction as a WOTUS under the Clean Water Act (CWA), the wetland must meet both of the following:

• 1. Adjacent to a traditional navigable water such as a stream, ocean, river or lake.
  2. Possess a “continuous surface connection” with that water, making it difficult to determine where the water ends and the wetland begins.

Prior to the Supreme Court’s ruling, federal agencies had sought to extend their jurisdiction over wetlands without a continuous surface connection, as long as such wetlands had a “significant nexus” to a traditional navigable water.

In a rare move, EPA eschewed public notice and comment on the new rule, which took immediate effect upon publication. The new rule eliminates the prior “significant nexus” test for wetlands, tributaries, and other non-navigable waters in favor of the “continuous surface connection” requirement described in Sackett. For a wetland to be subject to federal jurisdiction, including EPA and U.S. Army Corps of Engineers permitting requirements under the CWA, it must be:

• 1. Adjacent to a traditional navigable water.
  2. Adjacent to another jurisdictional water (such as a relatively permanent impoundment or tributary of a traditional navigable water) to which the wetland has a continuous surface connection.

The revision does not affect jurisdictional determinations for traditional navigable waters, territorial seas, or most interstate waters, and preserves exclusions from the definition of WOTUS for eight categories of waters including wetlands converted to cropland, wastewater treatment systems, ditches, and artificial lakes, ponds and pools.

EPA’s new rule has immediate consequences for millions of acres of wetlands across the country, more than half of which will no longer face federal regulation under the EPA. Those with properties or operations in wetlands should reassess their regulatory status in light of these revisions.

Please contact Sophie Gray or any member of Phelps’ Environmental team if you have questions or need compliance advice and guidance.