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Navigating Federal Requirements for Wetlands Protection in the U.S.

September 15, 2023 | Ted McCaslin

New federal regulations for Waters of the United States (WOTUS), including wetlands, were announced on August 29, 2023. This follows the pivotal May 25, 2023, U.S. Supreme Court ruling Sackett v. EPA, prompting an amendment to the Revised Waters of the U.S. rule announced in December 2022 (called the 2023 Rule). The ramifications of this most recent rule change have narrowed the scope of federally safeguarded wetlands under the Clean Water Act (CWA).

Wetland Regulatory Framework

Since the creation of the Clean Water Act (CWA) in 1972, it has been significantly reorganized and redefined with changing regulations and enforcement. Regulations have always been turbulent, specifically surrounding WOTUS. 

Over the past five decades, the EPA and U.S. Army Corps of Engineers (USACE) have interpreted “Waters of the United States” to include wetlands “adjacent” to water bodies in most cases, even if a dune, levee, or other barrier intervenes.  

The landmark Sackett decision has upheaved this interpretation, casting regulation of millions of acres of wetlands and ephemeral streams into uncertainty. Federal protections for WOTUS now blanket solely those wetlands that have a continuous surface connection to relatively permanent rivers, lakes, and other aquatic resources.

Immediate Impact on Wetlands

The August 29th amendment does not revise the definition of wetlands but does limit wetlands with WOTUS protections as only those with continuous surface connections to navigable waterways used for commerce – recognized seas, lakes, rivers, and perennial streams. 

Parts of the 2023 Rule are now invalid due to the Sackett decision including:

  • The “Significant Nexus” test for wetlands near navigable waters (in place since 2006) is removed from consideration.
  • Wetlands must have a continuous surface connection to traditionally navigable water. While further guidance is needed from EPA and USACE, this could mean ephemeral streams and wetlands adjacent to ephemeral streams no longer regulated by the CWA. This is significant considering ephemeral streams and adjacent wetlands account for more than a million miles of stream and 60% of all wetlands in the U.S.
    • Even with these changes, it is important to consider that wetlands that no longer have WOTUS protections may still be regulated by state and local rules. Fewer wetlands and streams will be regulated as WOTUS with this amendment, but this does not necessarily mean the wetlands are not protected. HR Green experts can help identify permitting requirements for projects that impact wetlands.

Understanding the Importance of Wetlands

The EPA defines wetlands as “areas where water covers the soil, or is present either at or near the surface of the soil all year or for varying periods of time during the year, including during the growing season.”

Marshes, swamps, bogs, and other wetlands are not always the most photogenic features. However, they play a critical part in the overall health of an ecosystem, by maintaining biodiversity, flood control, water purification, and climate regulation. They provide habitat for numerous plant and animal species, acting as crucial stopovers for migratory birds and contributing to the overall health of ecosystems. 

Partner with HR Green on Wetland Compliance

In the evolving landscape of wetland regulations – even wetlands no longer categorized as WOTUS – may still fall under the purview of state or local rules. Additional guidance from EPA and USACE is expected soon.

As we await these clarifications, seize the opportunity to partner with our HR Green team. Together, we can comprehensively assess wetland mitigation and compliance strategies tailored specifically to your state’s regulations.

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