On May 25, 2023, the United States Supreme Court issued its decision in Sackett v. Environmental Protection Agency (Sackett). With this case the Court determined that the jurisdiction of the Clean Water Act "extends only to those wetlands with a continuous surface connection to bodies that are waters of the United States in their own right, such that they are indistinguishable from those waters."
Mike and Chantell Sackett had challenged whether the EPA's
interpretation of Waters of the United States under the Clean Water Act covers
wetlands with an “ecologically significant nexus” to traditional navigable
waters. The EPA had classified the wetlands on the Sacketts' lot as
"waters of the United States" because they were near a ditch that fed
into a creek, which fed into Priest Lake, a navigable, intrastate lake. The EPA
argued that the wetlands on the Sackett property were "adjacent" to
an "unnamed tributary" on the other side of a 30-foot road. To establish
a significant nexus, the EPA combined the Sacketts' lot together with the
Kalispell Bay Fen, a large nearby wetland complex that the Agency regarded as
"similarly situated."
Their argument did not sway a single justice. The Supreme
Court found that the EPA had overstepped its authority in asserting
jurisdiction over the Sacketts' property. The opinion identified what wetlands
are protected by the Clean Water Act, excluding smaller waterbodies, such as
intermittent streams and tributaries of traditionally navigable waters, from Clean
Water Act authority.
The proper way to protect the wetlands, groundwater and
seasonal streams that we now understand are so essential to a balanced ecology
and healthy rivers and streams may be regulations for the application of
fill material, land use, non-point source pollution and other local issues.
These are not issues addressed under the Clean Water Act which addresses point
source pollution. These issues need to be addressed on the state and local
level.
Virginia has a very broad and comprehensive statutory
definition of state waters. Since at least 1968, state waters have been defined
to include “all water, on the surface and under the ground, wholly or partially
within or bordering the [Commonwealth] or within its jurisdiction.” This
definition was expanded in 2000 to include “all water, on the surface and under
the ground, wholly or partially within or bordering the Commonwealth or within
its jurisdiction, including wetlands.” Virginia law prohibits excavating,
filling, draining, or other activities that cause significant alteration or
degradation of existing wetland acreage or functions without a permit.
Since 2001, Virginia has regulated activities in wetlands
and streams through the Virginia Water Protection Permit (VWPP) program. These
permits require avoidance and minimization of wetland impacts to the maximum
extent practicable and compensation for any unavoidable loss of wetland
functions. Neither the State law nor the VWPP regulation was affected by the
Sackett decision.
Virginia regulations (9VAC25-210-80(B)(1)(h)(5)) require a
delineation map depicting all surface waters, including wetlands, identified on
the project site using accepted Corps methodologies (9VAC25-210-45) for an
application to be complete. This could have been a problem on moving projects
forward while the EPA and Army Corps of Engineers revise their regulations; but
the projects can move forward under an alternate pathway.
The Virginia State Water Control Law (62.1-44.15:21(C))
allows DEQ to make its own State Surface Water Determinations (SSWDs) using
accepted Corps field methods, or DEQ may accept a Corps confirmation. In many
cases, the Corps' boundary confirmation will suffice for DEQ's permitting
activities. DEQ has just issued guidance on the new process and confirmed their
intention to meet all the permit requests in as timely a fashion as possible.
In addition, the Sackett decision does not affect the
definition of Resource Protection Areas (RPAs) and Resource Management Areas
(RMAs) as defined in the Chesapeake Bay Preservation Act and associated
regulations. The Chesapeake Bay Preservation Act’s implementing regulations
provide that some wetlands are components of the RPA and some are components of
the RMA. The geographic extents of these wetland components are independent of
federal jurisdictional determinations and will remain under state jurisdiction
unchanged.
No comments:
Post a Comment