Last May, the Supreme Court ruled unanimously in favor of Michael and Chantell Sackett, owners of a property near Priest Lake, Idaho. The ruling determined that wetlands on their property were not considered Waters of the U.S. (WOTUS), and therefore impacts to these wetlands would not require federal permits under Clean Water Act (CWA) Section 404. The Sackett ruling was a stark departure from the United States Army Corps of Engineers (USACE) and Environmental Protection Agency’s (EPA) prior interpretation of “adjacent wetlands” under the CWA, which has, by and large, remained consistent since the Rapanos decision (excluding brief periods during which the Obama and Trump era WOTUS definitions were in place).
The decision significantly narrowed the EPA’s definition of WOTUS published in January, which was based on guidance issued after the Rapanos decision. In August, the EPA released a Final Rule redefining WOTUS to comply with the Supreme Court ruling. The Final Rule is consistent with the Sackett decision and limits federal jurisdiction over wetlands to only those adjacent to jurisdictional waters, meaning, those subject to interstate or foreign commerce, territorial seas, interstate waters, or “relatively permanent” tributaries to these waters. In the new definition, “adjacent” means “having a continuous surface connection to” (i.e., abutting with surface flow between the wetland and the jurisdictional water during periods of inundation). The Rapanos-era “significant nexus test,” which was previously used by the USACE and EPA to determine whether certain features were jurisdictional based on their effect on the chemical, physical, or biological integrity of jurisdictional waters, has been removed from the WOTUS definition and will no longer be used.
As a result of the new rule, many wetlands in California, including vernal pools, that were previously considered jurisdictional under the significant nexus test will no longer be federally regulated. However, California wetlands are protected regardless of federal jurisdiction under the state Porter-Cologne Water Quality Control Act. Where federal jurisdiction is lacking, project proponents must go through the Waste Discharge Requirements permit process with the State Water Resources Control Board (SWRCB) which includes a public review period. The SWRCB anticipates that a higher workload burden on the State and Regional Water Boards may result in increased permitting timelines (“Sackett v. EPA Frequently Asked Questions” presented by the SWRCB on October 23, 2023).
In addition, many vernal pools and wetlands in California are host to federally listed threatened and endangered species. When a CWA permit is required for a project’s impacts to federally jurisdictional wetlands, a more streamlined process for Endangered Species Act compliance is used. Under Section 7 of the Endangered Species Act, the USACE consults with the appropriate agency (U.S. Fish and Wildlife Service [USFWS] or National Marine Fisheries Service [NMFS]), and the consultation process is subject to a 135-day time limit. For projects that no longer require CWA permitting, and have no other federal nexus, project proponents will need to obtain coverage under Section 10 of the Endangered Species Act if federally listed species will be affected. Section 10 requires proponents to apply for an Incidental Take Permit directly from USFWS or NMFS and to prepare a Habitat Conservation Plan. Section 10 permitting is not subject to the same statutory timeline, which may also result in lengthier review periods.
In conclusion, although wetlands throughout much of the U.S. are losing federal protection under the CWA, wetlands in California will remain subject to regulation under state law and federal endangered species protections.
ECORP’s regulatory team continues to closely track this topic. Please contact Lourdes Gonzalez-Peralta at (916) 782-9100 or Scott Taylor at (909) 307-0046 for information on ECORP’s regulatory services.