In doing so, the Court crafted a definition of “waters of the United States” that is in line with the plain language of the statute and rejects longstanding overreach by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps).
Wetlands that can be regulated are those with continuous surface water connections with “relatively permanent” waters that are themselves connected to traditional interstate navigable waters. These relatively permanent waters are what most people would think of as water bodies, such as lakes and streams.
This language helps to provide some bright line rules for property owners and the agencies.
Now comes the EPA and Corps’ implementation of the decision.
Since the Sackett opinion has been released, the Corps has reportedly put a hold on making official decisions about whether a water is regulated (known as approved jurisdictional determinations). This will delay the Clean Water Act permitting process for property owners.
There is no reason for such sweeping delays. The Corps should have many obvious situations when a water isn’t regulated. For example, it should often be easy to determine that an alleged wetland doesn’t have a continuous surface water connection with a relatively permanent water.
To their credit, House and Senate Republican committee leaders are trying to ensure that the EPA and Corps don’t unnecessarily delay the permitting process. Last week, they sent a letter to the agencies requesting a detailed update on their implementation of the Sackett opinion and expressing concern over the Corps’ pause on approved jurisdictional determinations.
Congress will need to continue to provide the necessary oversight over the EPA and Corps to ensure that Sackett is implemented properly and any time needed to develop initial guidance or a new rule doesn’t serve as an excuse to unreasonably slow down the permitting process. The Republican committee leadership letter was correct when it stated:
The Biden Administration must now follow the law by implementing the Supreme Court’s decision with the same fervor it showed in its prior efforts on WOTUS. Failure to do so is indicative that these recent delays are needless at best, or intentional efforts to halt economic development at worst.
Legislators should expect the Corps to issue permits in an efficient manner. If there is even a reasonable basis to conclude that a water isn’t a regulated water, then the Corps should process an approved jurisdictional determination to this effect.