On May 25, 2023, the U.S. Supreme Court unanimously ruled in favor of Mike and Chantell Sackett in Sackett v. U.S. Environmental Protection Agency case. In this case, all nine Justices confirmed that the wetlands within the Sackett’s property should not be considered Waters of the United States. This decision has the potential to significantly impact the range of what is federally regulated or jurisdictional.
In response to this decision, the U.S. Army Corps of Engineers (USACE) has stopped issuing Approved Jurisdictional Determinations (AJDs) until regulatory guidelines supporting the recent court decision are provided. The USACE and EPA intend to issue a final rule by September 1, 2023.
Although federal delineation approvals have been disrupted for the time being, Virginia DEQ Director Mike Rolband noted in a June 29 memo to stakeholders that “In Contrast to the CWA, Virginia has a very broad and comprehensive definition of state waters.” Furthermore “Neither State law nor VWPP regulation is affected by the Sackett Decision.”
Previously VWP permit requirements (under 9VAC25-210-80.1.h(4)) relied heavily on the issuance of AJDs and PJDs from the USACE. However, with the likely gap in regulatory reach the State will need delineation oversight. To minimize permitting delays, Virginia DEQ will rely on State Surface Water Determination to verify wetland delineation accuracy, and if a request is submitted by a Virginia-certified Professional Wetland Delineator (PWD), “DEQ will strive to review each SSWD request within 30 days – which may involve field review.”
Here are the highlights…
- The Federal Supreme Court’s opinion reduces the number of wetland acres that are protected under the Clean Water Act (CWA)
- The Court determined that the jurisdiction of the CWA extends only to wetlands that connect directly to waters of the United States (interstate and navigable waters)
- At this time, we are not sure how the U.S. Army Corps of Engineers (USACE) and the U.S. Environmental Protection Agency (EPA) will implement the Sackett decision
- We will continue to monitor permitting changes and regulations as they may affect Virginia-based projects in the future
- Both agencies have announced an intention to create a Final Rule by September 1, 2023
We would like to help ensure your project stays in compliance and on time. Please contact Matt Neely at Matt.Neely@timmons.com for more information.
