September 12, 2023
By: John J. Truitt
The 1972 Clean Water Act’s (CWA) stated objective is to "restore and maintain the chemical, physical, and biological integrity of the Nation’s waters." The limiting factor for CWA jurisdiction has consistently been delineating the extent of Waters of the United States (WOTUS). The U.S. Supreme Court has routinely interpreted WOTUS' scope under the CWA in different contexts and under various permitting frameworks. On May 25, 2023, in the case of Sackett v. Environmental Protection Agency, the U.S. Supreme Court clarified the reach of WOTUS, with a specific focus on wetlands governed by Section 404 of the CWA. This section governs dredge and fill activities in WOTUS and, as a result, substantially narrows and elucidates federal jurisdiction in Florida.
On August 28, 2023, the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps), both responsible for implementing Section 404 of the CWA, issued a pre-publication rule incorporating the Sackett decision and revising the definitions of WOTUS and its associated jurisdiction. Given Florida's abundance of wetlands and its assumption of the federal Section 404 permitting program, these amended provisions reduce the reach of federal jurisdiction, consequently reducing the acreage in Florida subject to federal permitting requirements.
The Sackett decision chiefly reduces the scope of WOTUS concerning wetlands. Historically, adjacent wetlands were considered jurisdictional if they had a direct surface connection to a WOTUS or a "significant nexus" between the wetland and WOTUS. What constitutes a significant nexus was at the heart of the Sackett case and has caused tremendous regulatory confusion for over a decade. The court unequivocally removed the significant nexus requirement and clarified that wetlands fall under CWA jurisdiction if they are adjacent to (i.e., bordering) a WOTUS and have a continuous surface connection to the extent that it is unclear where the surface water ends and the wetland begins.
The revised rules formulated by the EPA and the Corps should significantly reduce uncertainty in federal wetland jurisdiction by:
- Clarifying that the Commerce Clause controls the extent of federal jurisdiction;
- Abandoning the notion that wetlands are jurisdictional solely by being interstate in nature;
- Removing the significant nexus standard from jurisdictional analyses of all water bodies, including wetlands;
- Clarifying WOTUS as relatively permanent, standing, or continuously flowing waters;
- Defining adjacent as having a continuous surface connection; and
- Omitting the phrase “significantly affect” from the regulations.
Apart from Alaska, Florida boasts the most extensive wetlands of any state in the U.S. Given Florida's distinctive hydrology, shallow water table, and extensive history of ditching, federal determinations based on "significant nexus" or "significantly affect" have traditionally entailed extensive fieldwork and groundwater analyses, leading to regulatory decisions that were open to varying interpretations by experts. While the new rules will not eliminate the need for expert analyses, they substantially reduce the ambiguity within the regulatory space. Although the new regulations do not impact state laws, decisions related to permitting and enforcement under Section 404 of the CWA in Florida will now be reached more swiftly and with a higher degree of certainty.
Questions?
Contact GrayRobinson Shareholder John J. Truitt or a member of the Environmental and Sustainability Law Team.