Page 6 - JulyAugust23 Report

Cover Article
While Sackett involved a dispute over wetlands, there is no reason to believe the Court’s view as to the validity of the SNT for determining what is an “adja- cent” wetland would be any different than its view as to the continued validity of using the same test to determine whether ephemeral streams, often located miles away from the nearest WOTUS, would be any different. Thus, at a minimum, the Sackett decision also calls into ques- tion the continued use of the SNT for such streams, if not outright overruling its further use by implication. In addition, while not expressly stating so, the Sackett decision effectively overrules the Army Corps/EPA’s revised WOTUS rule issued on January 18, 2023 (88 Fed. Reg. 3004), at least with respect to the continued use of the SNT (which the Agencies had kept in the revised rule, but renamed as the “significantly affect test”) for wetlands and most likely for ephemeral streams as well.
Starting shortly after the Supreme Court’s decision in Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159, (2001), the number of rewrites (at least seven) of this important rule long ago crossed the point of sublime to the realm of bizarre. During this time, the rule has been the subject of at least four separate Supreme Court appeals, including the Sackett decision. By far the most contro- versial aspect of the rule has been the incredibly broad, vague and subjective SNT used to determine whether wetlands and small streams, often miles away from the nearest WOTUS, either by themselves or considered together with other “simi- larly situated” waters in the region, have a “substantial” effect on the chemical, biological, and/or physical integrity of a nearby WOTUS. The Court’s latest ruling eliminates this vague and subjective test, providing more certainty to developers and homebuilders.
Based on some guiding principles offered from several members of the Court, the Agencies will have to revise their rule again, this time to focus on factors that demonstrate a direct and continuous surface connection between a wetland and a nearby WOTUS, in order for the wetland to be jurisdictional. And they’ll most likely need to adopt similar factors to show a direct and substantial
connection between small ephemeral streams and the physical, chemical and/ or biological integrity of a downgradient traditional WOTUS, in order for those streams to also be jurisdictional.
It seems clear that Congress is not prepared to work across the aisle to amend the CWA anytime soon to add additional clarity to the definition of WOTUS. Thus, states that want to preserve wetlands that do not directly adjoin a waterway will have to take steps to require a state-is- sued permit for such grading/filling. And if the SNT is indeed invalid for further use in evaluating ephemeral streams,
states will need to take steps there as well to preserve these small waterways. In the meantime, developers and homebuilders should reevaluate (1) permit applications pending with the Corps; (2) jurisdictional determinations obtained that have not yet been acted on; and (3) delineation reports obtained from consultants, in order to determine the impact of the Sackett ruling on these important steps in the Corps’ Section 404 permitting process.
Stephen N. Haughey is a partner at Frost Brown Todd LLP. Christina Wieg is a senior associate at Frost Brown Todd LLP
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THE REPORT | July/August 2023 | CincyBar.org