Tag: EPA

Turbulent Waters: Court Ruling Challenges White House Power Over Water Protections

How a Recent Court Ruling Could Complicate Waters of the United States (WOTUS) Rulemaking

A recent court decision in Marin Audubon Society v. FAA (No. 23-1067) may have significant implications for how the White House and federal agencies issue environmental regulations, particularly those related to the Clean Water Act’s (CWA) definition of “Waters of the United States” (WOTUS). The decision, issued by the United States Court of Appeals for the District of Columbia Circuit on November 12, 2024, has sparked questions around the authority of the Council on Environmental Quality (CEQ) to set binding environmental rules under the National Environmental Policy Act (NEPA). As WOTUS regulations continue to be a critical component of federal water protection, this ruling could add complexity to the rulemaking process, opening the door to new challenges and delays.

Understanding the CEQ’s Role in Environmental Regulation

The CEQ, part of the Executive Office of the President, was created to coordinate federal environmental efforts and ensure that agencies adhere to NEPA. Traditionally, CEQ issues guidelines that all federal agencies follow to conduct NEPA environmental assessments, which include evaluating the impacts of major actions on the environment. This standardization helps create a consistent framework across agencies for environmental protection.

In Marin Audubon Society v. FAA, however, the court raised doubts about CEQ’s ability to enforce binding regulations across federal agencies, arguing that its authority is primarily derived from executive orders rather than direct Congressional approval. Judge Randolph’s opinion suggested that CEQ’s rulemaking power might not hold up in court, challenging the notion that agencies are bound to follow CEQ’s NEPA guidelines. For WOTUS rulemaking, this raises substantial questions about how federal agencies like the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) will conduct their environmental reviews and establish regulatory consistency.

Key Ways This Ruling Could Affect WOTUS Rulemaking

Here’s how the court’s decision could potentially complicate future WOTUS regulations:

1. Limiting CEQ’s Influence Over Federal Environmental Reviews

The CEQ has long set the NEPA guidelines for federal agencies to ensure consistency in environmental impact assessments. By questioning whether CEQ has the authority to issue binding NEPA rules, the court has created uncertainty about the future of this standardized approach. Without a binding CEQ framework, agencies might no longer be required to use a single approach to assess the environmental impacts of WOTUS rules, making it more challenging to create uniform protections for waters and wetlands across the nation.

Potential Impact: The EPA and USACE could face challenges in setting a consistent environmental baseline when drafting WOTUS rules. This could create inconsistencies across administrations, especially if each agency must interpret NEPA standards independently. With a fragmented regulatory approach, the White House might struggle to align WOTUS rulemaking with broader environmental objectives, such as national water quality and biodiversity goals.

2. Increased Legal Challenges to WOTUS Rules

The court’s ruling introduces a heightened level of scrutiny on executive authority. Since WOTUS rules often rely on extensive environmental assessments, a lack of clear CEQ authority could make these assessments vulnerable to legal challenges. Opponents of WOTUS rules could argue that without CEQ’s centralized authority, the environmental analyses conducted by agencies lack sufficient legal backing, increasing the likelihood of lawsuits that could block or delay WOTUS rule implementations.

Potential Impact: Legal battles have already been a major obstacle for WOTUS rules. If challengers focus on procedural aspects related to NEPA compliance, the rulemaking process could face further delays. Such challenges could undermine agencies’ ability to protect critical waters and wetlands, forcing EPA and USACE to revisit or revise their environmental analyses.

3. Shift Toward Agency-Specific NEPA Guidelines

If CEQ’s authority is ultimately limited, federal agencies may need to establish or strengthen their own NEPA compliance processes rather than relying on CEQ guidelines. This could lead to inconsistencies in how agencies interpret and apply NEPA standards, as each agency might develop unique procedures for assessing environmental impacts.

Potential Impact: WOTUS regulations could face delays as agencies work to create or adjust their own NEPA guidelines. This would not only slow the process of protecting water resources but also introduce complexity as each agency may weigh environmental impacts differently. Developing these agency-specific rules could lengthen the timelines for WOTUS rulemaking and might complicate enforcement if there are varying interpretations of environmental impacts across agencies.

4. Potential Constraints on the White House’s Climate and Water Protection Goals

The White House often relies on consistent, CEQ-led NEPA standards to ensure cohesive action across federal agencies, especially for ambitious goals such as those related to water conservation and climate change. With limitations on CEQ’s binding authority, it may become harder for the White House to drive a uniform environmental agenda and ensure that federal actions collectively work towards shared conservation objectives.

Potential Impact: WOTUS rules are essential for regulating water quality and protecting wetlands, which in turn play a crucial role in carbon sequestration, flood control, and habitat preservation. Without a consistent NEPA framework, the White House might find it challenging to align WOTUS rulemaking with broader environmental policies, potentially hampering efforts to meet water quality and climate goals. Additionally, a decentralized approach could lead to variability in enforcement, as agencies might follow different standards based on their unique NEPA guidelines.

5. Potential Rethink of Environmental Regulatory Strategy

The ruling could prompt the White House to explore alternative approaches to achieve its environmental objectives, especially if CEQ’s centralized authority remains in question. This might include working more closely with Congress to gain legislative backing for WOTUS or encouraging states to take a more active role in water protection.

Potential Impact: One option could be to shift more responsibility for water protection to the states, reducing federal reliance on WOTUS rules. Alternatively, the White House might pursue more public-private partnerships to address water conservation through collaborative projects rather than regulation alone. Such approaches could help the White House advance its goals despite the procedural challenges posed by the court’s decision, though they may be less effective than a cohesive federal approach.

Conclusion

The court’s ruling in Marin Audubon Society v. FAA (No. 23-1067) has introduced new complexities into the regulatory landscape for federal water protections like WOTUS. By calling into question the CEQ’s authority to issue binding environmental rules under NEPA, the court’s decision could slow down the WOTUS rulemaking process, open the door to more legal challenges, and limit the White House’s ability to enforce consistent environmental protections across agencies.

For those invested in the protection of U.S. water resources, this ruling highlights the importance of clear, well-supported regulatory authority. The White House may need to adapt by seeking legislative support for CEQ’s role or by exploring alternative regulatory strategies to continue advancing WOTUS protections. As federal agencies navigate these changes, the fate of critical waters and wetlands will remain a closely watched issue, with implications for conservation, climate resilience, and clean water access nationwide.

The Swamp School WOTUS Rule

Personal Statement: Why We Need the Swamp School WOTUS Rule

As a professional who has dedicated over 40 years to working with wetlands, I have had a front-row seat to the evolution—and at times, the decay—of the WOTUS program. I’ve watched policies shift from stringent federal control to more localized approaches, and I’ve seen the impacts these changes have had on our wetlands and waterways, our communities, and our economy. I’ve worked with landowners who are uncertain about their responsibilities, developers who are frustrated by regulatory delays, and conservationists who are determined to protect our water resources amidst shifting policies. This journey has reinforced my conviction that it is time for us to take matters into our own hands and build a WOTUS framework that is fair, responsible, and sustainable.

Throughout my career, I have witnessed both the strengths and weaknesses of federal oversight. There is no doubt that the Clean Water Act has played a vital role in protecting critical water resources and improving water quality across the country. However, as the regulatory landscape has changed, so too have the complexities and challenges of defining and enforcing WOTUS. Too often, jurisdictional determinations have become bottlenecks, with regulatory uncertainty leading to delays, increased costs, and growing frustration for everyone involved. The current system, while well-intentioned, has become a maze that is difficult to navigate, often leaving landowners, businesses, and environmental professionals at odds over water resources that are vital to all of us.

The Swamp School WOTUS Rule represents a new way forward, one that is rooted in my decades of experience and in the lessons I have learned from working directly with the land and water. This rule acknowledges the critical role of federal protections for key water resources, but it also respects the sovereignty and expertise of states to manage waters that fall outside federal jurisdiction. By reserving isolated, ephemeral, and other local waters for state management, we create a framework that empowers states to act in ways that make sense for their own unique landscapes, communities, and economies.

One of the most critical aspects of the Swamp School WOTUS Rule is the privatized jurisdictional determination process. Over the years, I have come to believe that water resources are best understood by those who have specialized training and on-the-ground experience. That’s why this rule calls for Certified WOTUS Determination Professionals (CWDPs) to lead the jurisdictional determination process. These trained professionals will make responsible, accurate, and timely determinations based on consistent criteria, backed by both federal and state oversight. By empowering certified professionals to assess jurisdiction, we streamline the process, reduce delays, and ensure that decisions are informed by real-world expertise.

I am also a firm believer in the principles of cooperative federalism, which have been woven into the very fabric of the Clean Water Act since its inception. The Swamp School WOTUS Rule builds on these principles by creating a partnership between federal agencies and the states, and between certified professionals and government regulators. This collaborative approach will give rise to a more efficient, accountable, and responsive WOTUS program that serves the needs of all Americans.

For me, the Swamp School WOTUS Rule is not just another regulation; it is a culmination of my life’s work and a commitment to the sustainable stewardship of our water resources. It’s a blueprint for a balanced approach that protects our most critical waters, respects the rights of states, and empowers trained professionals to do what they do best. This rule reflects decades of knowledge, and it embodies a vision for the future that is fair, sustainable, and grounded in the belief that effective water management must be practical, science-based, and adaptable to our changing world.

Of course, as much as I’d like to think we could officially call it the Swamp School WOTUS Rule, I’m pretty sure the powers-that-be will come up with something a little less colorful! I can almost hear it now: “The Clean Waters Collaborative Determination Act” or maybe “The Federated Waters Determination Framework.” But whatever name they choose, the heart of the rule will remain the same—protecting our water resources in a way that’s both responsible and sustainable. And hey, as long as they remember where it came from, they can call it whatever they like!

In closing, my hope is that the Swamp School WOTUS Rule will help foster a new era of water management—one that can evolve with the times while remaining steadfast in its commitment to responsible stewardship. This is more than a policy; it’s a promise to future generations that we are committed to protecting our waters with integrity, respect, and a deep understanding of their vital role in our lives. – Marc Seelinger, SPWS

The Swamp School WOTUS Rule

Purpose: The Swamp School WOTUS Rule offers a comprehensive and efficient approach to defining Waters of the United States (WOTUS), balancing federal oversight with enhanced state autonomy. It privatizes the jurisdictional determination process through a certification program for professionals authorized to assess water bodies as either federally or state-regulated. This rule focuses federal jurisdiction on waters essential to interstate commerce and environmental health, while empowering states to manage other water resources through state-specific programs.

Key Provisions of the Swamp School WOTUS Rule

1. Jurisdictional Waters Under Federal Authority

The rule focuses federal jurisdiction on water bodies with continuous, significant connections to traditional navigable waters (TNWs). These core water resources are critical for interstate commerce and ecological connectivity, making them subject to federal oversight under the Clean Water Act.

  • Traditional Navigable Waters (TNWs): Large rivers, lakes, bays, and tidal waters that are currently or historically used in interstate or foreign commerce.
  • Interstate Waters: Waters crossing or forming state boundaries with continuous surface connections to TNWs.
  • Relatively Permanent Tributaries: Perennial or intermittent streams, rivers, and other natural channels that flow into TNWs or interstate waters.
  • Adjacent Wetlands with Continuous Surface Connections: Wetlands directly abutting TNWs or relatively permanent tributaries, without natural or artificial barriers.
  • Impoundments of Jurisdictional Waters: Dams, reservoirs, or other impoundments that maintain a direct hydrological connection to a jurisdictional water.

2. Non-Jurisdictional Waters Reserved for State Management

Certain waters that do not meet federal criteria fall under state jurisdiction. States are empowered to manage these waters according to local priorities, creating unique regulations and programs tailored to specific environmental and economic needs. State jurisdiction covers:

  • Ephemeral Streams and Temporary Channels: Features that flow only after rainfall and lack continuous flow to TNWs.
  • Isolated Wetlands and Non-Continuous Interstate Waters: Wetlands without direct surface connections to TNWs or other jurisdictional waters.
  • Ditches and Man-Made Water Features Not Functioning as WOTUS: Non-navigable ditches, canals, and artificial features disconnected from WOTUS.
  • Groundwater: All groundwater remains outside the scope of federal jurisdiction.
  • Prior Converted Cropland and Certain Artificial Water Bodies: Agricultural lands and water bodies, such as irrigation ponds, disconnected from jurisdictional waters.

3. Certified WOTUS Determination Professionals (CWDPs) for Federal Determinations

The Swamp School WOTUS Rule establishes a privatized jurisdictional determination process through a network of Certified WOTUS Determination Professionals (CWDPs). CWDPs are authorized to conduct official WOTUS determinations and to classify water features as either federally regulated or state-regulated, based on the Swamp School WOTUS Rule.

  • Certification Process:
    • CWDPs complete rigorous training in federal WOTUS standards, hydrology, wetland science, and water law.
    • Certification requires passing a written exam and completing a field practicum demonstrating real-world skills in assessing water features.
    • Certified professionals must maintain credentials through continuing education to stay current with updates in regulation and environmental science.
  • Authority and Oversight:
    • CWDPs’ determinations are binding and subject to periodic review by the EPA and the U.S. Army Corps of Engineers for quality assurance.
    • Determinations are documented in reports that include data, maps, and justification, ensuring transparency and consistency.
  • Transparency and Documentation: CWDPs submit detailed determination reports accessible to federal and state agencies, providing accountability and clarity for stakeholders.

4. State Jurisdictional Determination Program

In addition to the federal determination program, the Swamp School WOTUS Rule establishes a State Jurisdictional Determination Program. Under this system, each state has its own certification and licensing requirements for professionals conducting state-level jurisdictional determinations, similar to professional licensing in fields like law or medicine. This program ensures that individuals working in a particular state are qualified to make jurisdictional determinations in alignment with state-specific water management standards.

  • State-Specific Certification:
    • Each state will develop its own certification program for jurisdictional determinations, with specific training and licensure requirements tailored to regional priorities.
    • State-certified professionals must meet standards similar to CWDPs, with state-administered exams and field practicums relevant to local hydrology and environmental considerations.
    • Continuing education will be required to maintain state certification, ensuring that professionals remain knowledgeable about both state and federal changes.
  • Distinct Licensing Requirements: State-certified professionals will be licensed in their respective states, much like attorneys, to ensure they have in-depth knowledge of regional water management standards, ecosystems, and regulatory frameworks.
  • Collaborative Standards and Support: Federal agencies will provide resources and technical support to help states establish and maintain rigorous certification programs, promoting consistency and high standards nationwide.

5. Federal Oversight and Cooperative Federalism

The Swamp School WOTUS Rule emphasizes cooperative federalism, recognizing that water management is best achieved through collaboration between federal, state, and private sectors. Federal agencies support the certified professional network and work alongside states to maintain consistent, high standards in water resource management.

  • Federal Guidance and Resources: The EPA and Army Corps of Engineers will provide training materials, tools, and technical resources to support CWDPs and state certification programs.
  • Grant Programs for State Initiatives: States can apply for federal grants to support water management projects, including conservation, restoration, and water quality initiatives.
  • Interstate Collaboration: For shared water resources, federal agencies will facilitate cooperation between states, helping to harmonize water quality standards and regulatory approaches.

Benefits of The Swamp School WOTUS Rule

  1. Enhanced Efficiency and Consistency: By delegating jurisdictional determinations to certified professionals, the rule accelerates decision-making and reduces regulatory bottlenecks, benefiting landowners, developers, and conservationists.
  2. Increased Professional Accountability: Certified WOTUS Determination Professionals (CWDPs) and state-certified professionals bring high levels of expertise and accountability, ensuring reliable and accurate water assessments nationwide.
  3. Empowered State Management and Local Control: States gain primary responsibility over non-jurisdictional waters, allowing them to regulate based on regional needs and priorities, fostering innovation in water management.
  4. Transparent and Predictable Process: The rule creates a clear, predictable process for determining jurisdiction, with transparent documentation and accessible reports, which benefit all stakeholders by reducing uncertainty.
  5. Balanced Federal Protection for Key Waters: Federal jurisdiction is focused on core water resources that impact interstate commerce, downstream health, and ecological stability, while states retain autonomy over isolated and ephemeral waters.

Conclusion: A Balanced and Modern Approach to Water Management

The Swamp School WOTUS Rule represents a forward-thinking solution to defining Waters of the United States, blending federal protections with state rights and privatizing the jurisdictional determination process to increase efficiency and accuracy. By empowering a network of certified professionals and recognizing state-specific licensing, this rule fosters a cooperative approach that respects both national interests and local autonomy. It is a sustainable, balanced framework designed to ensure the protection and responsible management of America’s water resources, addressing the needs of today while paving the way for future generations.

Understanding the Proposed Clean Water Act of 2023: A New Era in Water Protection?

The Clean Water Act (CWA) has long been the cornerstone of water protection in the United States, but the environmental landscape has shifted, prompting lawmakers to propose updates to address modern challenges. In October 2023, a group of House Democrats introduced the Clean Water Act of 2023 (H.R. 5983), which aims to restore protections to U.S. waters following the Supreme Court’s Sackett v. EPA decision earlier in the year. The proposed changes could have significant implications for water management, environmental protection, and business regulation across the country.

Why a New Clean Water Act?

The primary motivation behind this update is the Supreme Court’s May 2023 ruling in Sackett v. EPA, which narrowed the definition of waters protected under the original Clean Water Act. This decision stripped federal protection from a significant portion of the nation’s wetlands and streams, reducing their regulation. The Clean Water Act of 2023 seeks to restore these protections by expanding the definition of Waters of the United States (WOTUS) and reinstating federal oversight over critical waterways.

Key Provisions of the 2023 Act

  1. Expanded Definitions of Protected Waters
    The Act aims to broaden the scope of protected waters, ensuring that small streams, wetlands, and other water bodies that lost federal protection after the Sackett ruling are once again regulated under federal law. This would close loopholes that have allowed pollution and degradation of these critical water sources.
  2. Stricter Permitting Processes
    The proposed law introduces tougher requirements for obtaining permits to discharge pollutants into protected waters. This is expected to have major implications for industries like construction and agriculture, which frequently interact with water bodies that may now fall under federal jurisdiction again.
  3. Focus on Wetland Conservation
    Recognizing the role wetlands play in flood control, water purification, and habitat provision, the new Act promotes stronger protections and increased restoration efforts for these ecosystems. Wetland mitigation banking is also supported, allowing developers more flexibility while still maintaining conservation goals.
  4. Climate Resilience
    The Act incorporates climate resilience into water management strategies. By funding green infrastructure projects and improving natural flood defenses like wetlands, the legislation seeks to mitigate the effects of climate change on U.S. water systems.

Important Dates and Legislative Progress

The Clean Water Act of 2023 was introduced in the House on October 18, 2023, by Rep. Rick Larsen (D-WA), alongside co-sponsors Rep. Grace Napolitano (D-CA), Rep. Don Beyer (D-VA), and Rep. Melanie Stansbury (D-NM). It was referred to the House Committee on Transportation and Infrastructure on October 25, 2023, and then to the Subcommittee on Water Resources and Environment on October 27, 2023.

On September 11, 2024 a hearing of the subcommittee on Water Resources and Environment was held. The hearing featured testimonies from various stakeholders, including representatives from:

  • Ms. Emma Pokon, Commissioner, Alaska Department of Environmental Conservation
  • Ms. Nicole Rowan, Director, Water Quality Control Division, Colorado Department of Public Health and Environment
  • Ms. Courtney Briggs, Chairman, Waters Advocacy Coalition, on behalf of the American Farm Bureau Federation
  • Mr. Vincent E. Messerly, P.E., President, Stream and Wetlands Foundation, on behalf of the National Association of Home Builders

They discussed the impacts of the Sackett decision on environmental protection, economic development, and the balance between federal and state regulatory roles.

Looking Ahead: What’s Next?

As the Clean Water Act of 2023 moves through the legislative process, it faces both support and opposition. Advocates for the bill emphasize its importance for restoring critical protections and promoting environmental health, while opponents argue that the expansion of federal water regulation could hamper economic development.

With the increasing challenges posed by climate change and population growth, the Clean Water Act of 2023 could play a pivotal role in shaping U.S. water policy for years to come. Keep an eye on this bill as it progresses through Congress, as its final form could have far-reaching impacts on water protection and management.

Understanding Jurisdictional Determinations: Pipes and Swales as Continuous Surface Connections

Background

The U.S. Environmental Protection Agency (EPA) and the Office of the Assistant Secretary of the Army for Civil Works (OASACW) recently issued a joint memorandum addressing the jurisdictional determination (JD) for NAP-2023-01223. This memorandum clarifies the criteria for wetlands to be considered “waters of the United States” (WOTUS) under the Clean Water Act (CWA), following the Supreme Court decision in Sackett v. EPA. This decision is pivotal in determining when wetlands are jurisdictional, requiring a continuous surface connection to navigable waters or other recognized WOTUS.

Summary

The joint memorandum returned the draft approved JD to the Philadelphia District for revisions, ensuring alignment with the Supreme Court’s Sackett decision. The Sackett ruling specifies that wetlands must have a continuous surface connection to waters recognized as WOTUS to fall under CWA protection. This blog post will delve into the critical role of pipes and swales in maintaining this continuous surface connection, thus impacting the jurisdictional status of wetlands.

Assessment of Adjacent Wetlands Consistent with Sackett

The Sackett decision mandates that adjacent wetlands must have a continuous surface connection with traditionally navigable waters or other WOTUS. This standard, first established in the Rapanos plurality opinion, does not require the wetlands and waters to be visually indistinguishable but emphasizes a clear, physical connection. It is important to note that the term “indistinguishable” in this context does not imply a visual similarity; instead, it refers to the physical and hydrologic connection that allows the wetland to function as part of the broader aquatic ecosystem.

Pipes as Continuous Surface Connections

Context and Application

Infrastructure Role: Pipes and culverts are essential for maintaining hydrologic connectivity across roadways, preventing flooding and erosion. They ensure a continuous flow of water between aquatic resources on either side of the road.

Jurisdictional Determination: During storm events and high water flow periods, these pipes help maintain a physical connection between wetlands and relatively permanent waters, supporting their jurisdictional status under the CWA.

Case Example: Wetlands Area #6

Location: Camden Wyoming, Delaware.
Connection: Wetlands Area #6 connects to Red House Branch via a 70-foot pipe under Willow Grove Road.
Hydrologic Role: This pipe ensures continuous surface water flow from Wetlands Area #6 to Red House Branch, meeting the criteria for an adjacent wetland.

Swales as Continuous Surface Connections

Context and Application

Natural and Constructed Features: Swales, which can be natural or constructed, convey water from surrounding uplands and wetlands. They often carry low-frequency and low-volume flows, which can be crucial for maintaining jurisdictional connectivity.

Evidence of Flow: Observations of water flow in swales, especially following precipitation events, provide critical evidence of a continuous surface connection between wetlands and relatively permanent waters.

Case Example: Wetlands Area #8

Location: Camden Wyoming, Delaware.
Connection: Wetlands Area #8 connects to Waters Area #2, a relatively permanent impoundment, via a 350-foot swale.
Hydrologic Role: Observations of water flow in the swale after rain events demonstrate the physical connection necessary for jurisdictional status.

Legal and Regulatory Framework

Clean Water Act (CWA) Provisions: Regulations at 33 CFR 328.3(a)(4) and 40 CFR 120.2(a)(4) outline the conditions under which wetlands are considered adjacent and thus jurisdictional.

Supreme Court Decisions: The Sackett and Rapanos rulings provide the judicial framework for the continuous surface connection requirement, emphasizing the importance of physical and hydrologic connectivity.

Factors Considered in Assessments:

  • Physical Indicators of Flow: Evidence such as surface water flow during storm events and physical connections like pipes and swales.
  • Length and Nature of Connection: The physical characteristics of the connection, such as length and whether it is manmade or natural.

Practical Implications

Recognizing pipes and swales as continuous surface connections has several practical implications:

  • Infrastructure Design: Encourages designs that maintain hydrologic connectivity, supporting wetland preservation.
  • Regulatory Compliance: Assists regulatory bodies and stakeholders in making informed jurisdictional determinations consistent with the CWA and Supreme Court rulings.
  • Environmental Protection: Ensures that connected wetlands receive appropriate regulatory protections, contributing to broader water quality and ecosystem health goals.

Conclusion

The joint memorandum provides detailed guidance on when pipes and swales can meet the continuous surface connection requirement for wetlands, emphasizing context-specific assessments. By examining physical connections and hydrologic evidence, regulatory agencies can make informed determinations that align with the legal standards established in Sackett and Rapanos. This approach ensures that wetlands that truly function as part of the broader aquatic ecosystem are appropriately regulated and protected under the CWA.

Keywords: jurisdictional determination, Clean Water Act, wetlands, continuous surface connection, Sackett v. EPA, Rapanos, pipes, swales, hydrologic connectivity, WOTUS, environmental protection, EPA.

The Chevron Overturn: A New Era for Environmental Law and Consulting

Chevron Blog

The recent decision by the U.S. Supreme Court to overturn the Chevron doctrine marks a significant shift in administrative law, with profound implications for environmental regulation. This landmark ruling will notably impact the workload of environmental consultants, who will find themselves at the forefront of navigating the new legal landscape.

Background on the Chevron Doctrine

The Chevron doctrine, established in the 1984 case Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., has been a foundational principle in administrative law. It mandated that courts defer to federal agencies’ interpretations of ambiguous statutes within their regulatory domain, provided those interpretations were reasonable. This deference allowed agencies like the Environmental Protection Agency (EPA) considerable leeway in enforcing complex regulations such as those under the Clean Water Act, including the contentious Waters of the United States (WOTUS) rule​ (Home | Holland & Knight)​​ (Politico)​.

Increased Litigation and Regulatory Challenges

With the Chevron doctrine overturned, courts will no longer defer to agency interpretations of ambiguous statutes. Instead, they will exercise independent judgment. This shift is expected to trigger a wave of legal challenges against existing and new environmental regulations. Environmental consultants will play a crucial role in these legal battles, providing expert testimony, preparing detailed environmental impact assessments, and supporting legal teams in understanding and contesting regulatory interpretations​ (SCOTUSblog)​​ (Politico)​.

The legal uncertainty following the end of Chevron deference means that many regulations previously upheld under this doctrine are now open to re-evaluation. This scenario will likely lead to an increased demand for consultants to help navigate the evolving legal landscape and ensure compliance with regulatory requirements.

Need for Detailed Compliance Analysis

Without Chevron deference, the clarity on what constitutes compliance with environmental statutes will diminish. Companies and developers will require more comprehensive and rigorous analyses to ensure they meet the new standards set by independent judicial interpretations. Environmental consultants will need to conduct detailed investigations and provide robust documentation to demonstrate compliance with environmental laws, particularly those related to water quality and land use​ (Politico)​.

For instance, WOTUS regulations, which define the scope of waters protected under the Clean Water Act, could see significant reinterpretations. Environmental consultants will need to stay abreast of these changes and provide accurate assessments to help clients navigate compliance issues.

Policy Interpretation and Guidance

Environmental consultants will be essential in interpreting new court rulings and understanding their implications for existing regulations. The overturning of Chevron deference means that regulatory guidance from agencies may no longer carry the same weight, placing greater responsibility on consultants to interpret legal requirements and advise clients accordingly​ (SCOTUSblog)​.

This role will involve staying updated on the latest legal developments and providing clients with clear, actionable insights on how changes in the law affect their operations. Consultants will need to be adept at translating complex legal decisions into practical compliance strategies for their clients.

Updating Environmental Management Practices

Organizations will need to update their environmental management practices to align with the new legal landscape. This process involves revising standard operating procedures, training staff on new compliance requirements, and ensuring all practices meet the latest interpretations of environmental laws. Environmental consultants will be instrumental in guiding organizations through these updates, ensuring that all aspects of their operations are compliant with the new regulatory environment​ (Home | Holland & Knight)​​ (Politico)​.

The Supreme Court’s decision may lead to more stringent judicial scrutiny of agency regulations, requiring consultants to provide more detailed and scientifically robust analyses to support compliance efforts. This increased scrutiny will necessitate higher standards of environmental documentation and reporting.

Permitting and Project Delays

The process for obtaining environmental permits is likely to become more complex and time-consuming. Without the deference previously afforded under Chevron, agencies may face more challenges in implementing and defending their regulatory decisions. This complexity will extend to the permitting process, where more rigorous and detailed applications will be required. Environmental consultants will be essential in navigating these processes, ensuring that all necessary documentation and environmental impact analyses are thorough and meet the new legal standards​ (Home | Holland & Knight)​​ (Politico)​.

In summary, the Supreme Court’s decision to overturn the Chevron doctrine represents a significant shift in administrative law that will substantially increase the workload for environmental consultants. They will be required to provide more detailed compliance analysis, interpret new legal standards, update environmental management practices, and navigate a more complex permitting process. As the legal landscape evolves, the expertise and guidance of environmental consultants will be more critical than ever in ensuring that organizations remain compliant with environmental regulations.

Unveiling WOTUS: How NOHWM and SDAM Define Our Nation’s Waterways

Stream Site

Establishing Jurisdictional Waters of the United States (WOTUS) Using the US Army Corps of Engineers National Ordinary High Water Mark Manual (NOHWM) and Stream Duration Assessment Method (SDAM)

For environmental scientists, the determination of whether a wetland or waterway qualifies as a jurisdictional Water of the United States (WOTUS) is not just a regulatory necessity but a vital step in preserving our nation’s aquatic ecosystems. At the heart of this process are two pivotal tools provided by the US Army Corps of Engineers (USACE): the National Ordinary High Water Mark (NOHWM) Manual and the Stream Duration Assessment Method (SDAM). Together, these methodologies offer a comprehensive, scientific approach to delineating WOTUS, ensuring that critical water resources are effectively protected.

An image of the cover of the National Ordinary High Water Mark Field Delineation Manual for Rivers and Streams.

Diving into the National Ordinary High Water Mark (NOHWM) Manual

The National Ordinary High Water Mark (NOHWM) Manual serves as a detailed guide for environmental professionals to accurately identify the Ordinary High Water Mark (OHWM) in various landscapes. The OHWM represents the boundary between jurisdictional waters and upland areas, making it a crucial concept for environmental assessments.

Key Components of NOHWM:

  1. Physical Characteristics: The manual outlines physical indicators that signify the presence of an OHWM. These include:
  • Clear Natural Line: Look for a visible line on the bank formed by the regular presence of water.
  • Soil Changes: Notice differences in soil color, texture, or composition that indicate historical water presence.
  • Vegetation Patterns: Identify areas where terrestrial vegetation is absent or altered due to frequent inundation.
  • Litter and Debris: Examine the accumulation of organic and inorganic materials deposited by water flow.
  1. Regional Adaptations: The NOHWM Manual acknowledges the diversity of the US landscape, providing region-specific guidelines to account for varying hydrological and geomorphological conditions.
  2. Field Procedures: The manual details systematic field procedures, ensuring consistency and accuracy across assessments. This includes standardized data collection techniques, field forms, and documentation practices.

The Weight of Evidence Approach in NOHWM

A critical concept in the NOHWM approach is the “weight of evidence” (WOE) methodology. This approach ensures that multiple lines of evidence are considered when determining the OHWM, providing a more robust and defensible delineation.

Weight of Evidence Approach:

  1. Multiple Indicators: Instead of relying on a single indicator, the WOE approach integrates various physical, hydrological, and biological indicators. This multi-faceted analysis helps in cross-verifying the presence and extent of OHWM.
  2. Corroborative Evidence: Indicators such as changes in soil, vegetation patterns, and physical markings on the bank are examined together. Consistency among these indicators strengthens the determination of OHWM.
  3. Contextual Analysis: The WOE approach considers the broader landscape and hydrological context, including historical data and regional characteristics, ensuring that the delineation is not only accurate but also contextually relevant.
  4. Documentation and Transparency: Detailed documentation of all evidence and indicators used in the assessment is crucial. This transparency enhances the defensibility of the OHWM determination.
An image of the cover of the User Manual for Beta Streamflow Duration Assessment Methods for the Northeast and Southeast of the United States

Stream Duration Assessment Method (SDAM): A Closer Look

For scientists engaged in stream assessments, the Stream Duration Assessment Method (SDAM) is a game-changer. It allows for precise classification of streams based on their flow duration, which is essential for determining their jurisdictional status.

Stream Classifications:

  1. Ephemeral Streams: These streams flow only during and immediately after precipitation events. As a scientist, identifying ephemeral streams involves recognizing temporary water flow patterns and minimal biological activity.
  2. Intermittent Streams: These streams flow during certain times of the year, such as the wet season, but not continuously. Intermittent streams show clear signs of seasonal aquatic life and sediment patterns.
  3. Perennial Streams: Perennial streams flow year-round and are typically considered jurisdictional. These streams support continuous aquatic habitats and show persistent hydrological and biological indicators.

SDAM Assessment Process:

  1. Field Observations: Conduct site visits to observe physical characteristics like bed and bank features, sediment deposits, and biological indicators such as the presence of aquatic organisms and specific plant species.
  2. Hydrological Data Review: Examine historical flow records, precipitation data, and stream gauge information to understand the stream’s flow regime over time.
  3. Biological Indicators: Identify the presence of certain aquatic organisms and plant species that thrive in continuous or seasonal water flow, offering insights into the stream’s duration and consistency.

Integrating NOHWM and SDAM for WOTUS Determinations

The integration of the NOHWM and SDAM methodologies provides a robust framework for determining whether a water body qualifies as WOTUS. For environmental scientists, this integration involves a meticulous blend of physical, hydrological, and biological assessments.

Determination Process:

  1. Preliminary Assessment: Begin with a thorough desktop review, using maps, aerial photos, and existing hydrological data to identify potential jurisdictional waters.
  2. Field Verification: Conduct on-site inspections to validate preliminary findings. Observe physical indicators of OHWM and perform SDAM assessments to classify stream types accurately.
  3. Data Integration: Combine field observations with historical and current hydrological data. This comprehensive dataset aids in making well-informed determinations of a water body’s jurisdictional status.
  4. Documentation and Reporting: Prepare detailed reports that document findings, methodologies, and justifications for the jurisdictional status. These reports provide transparency and serve as a basis for regulatory decisions.

The Environmental Significance of NOHWM and SDAM

For environmental scientists, the accurate identification of jurisdictional waters is paramount. Here’s why:

  1. Protecting Ecosystems: Correctly delineating WOTUS ensures the preservation of vital aquatic ecosystems, protecting them from pollution and degradation.
  2. Ensuring Compliance: Clear identification helps landowners, developers, and other stakeholders understand their obligations under the Clean Water Act, preventing unauthorized activities that could harm protected waters.
  3. Resource Management: Informed decision-making for water resource management, conservation planning, and habitat restoration efforts becomes possible, benefiting both the environment and the communities that rely on these resources.

Conclusion

The National Ordinary High Water Mark Manual (NOHWM) and the Stream Duration Assessment Method (SDAM) are indispensable tools for environmental scientists working to delineate jurisdictional Waters of the United States (WOTUS). By applying these methodologies, the US Army Corps of Engineers ensures that water bodies deserving of protection under the Clean Water Act are accurately identified and managed. For environmental professionals, mastering these methods is not just about regulatory compliance—it’s about playing a critical role in safeguarding the health and integrity of our nation’s precious water resources. Through diligent application of NOHWM and SDAM, we can continue to protect and sustain our aquatic ecosystems for future generations.

Understanding the 2023 Revised WOTUS Rule: Aligning Federal Water Regulations with Supreme Court Guidance

A beautifully illustrated waterway

The revised rule defining “Waters of the United States” (WOTUS) under the Clean Water Act was significantly influenced by the Supreme Court’s decision in the case of Sackett v. EPA. This 2023 amendment refines the scope of waters that are federally regulated, emphasizing the necessity for them to have more permanent, physical connections to traditional navigable waters.

Key Elements of the Revised WOTUS Rule:

  1. Narrowed Definition: The new rule focuses on waters that are:
    • Traditionally navigable waters, including oceans and large rivers.
    • Perennial and intermittent tributaries that contribute flow to traditional navigable waters.
    • Certain lakes, ponds, and impoundments of jurisdictional waters.
    • Wetlands adjacent to other jurisdictional waters that meet specific criteria for a direct hydrological surface connection.
  2. Exclusions: The rule specifically excludes:
    • Features that only contain water in response to rainfall.
    • Groundwater.
    • Many ditches, including most roadside and farm ditches.
    • Prior converted cropland.
    • Waste treatment systems.
  3. Implementation Status: As mentioned, the implementation of this rule is currently mixed due to ongoing litigation:
    • In 23 states, plus the District of Columbia and U.S. Territories, the 2023 rule is in effect.
    • In 27 other states, authorities continue to use the pre-2015 regulatory definitions pending further court decisions.
  4. Legal and Regulatory Framework: The rule is designed to align with the Supreme Court’s narrower interpretation which limits federal jurisdiction to those waters with a significant nexus to navigable waters.
  5. Impact on Regulatory Practices: This revision affects how businesses and landowners manage their land and water resources, particularly concerning permits for development and land use changes.

The practical application of these changes means that permit requirements may vary significantly depending on the state and the nature of the water bodies involved. This complexity underscores the need for ongoing legal guidance and compliance strategies for those affected by these regulations.

For complete details on the regulatory definitions and implications, you can view the official documentation and additional resources provided by the EPA on their WOTUS Rule Information Page.

Navigating New Waters: The U.S. Army Corps of Engineers’ Strategic Response to the Sackett Decision and the Future of Wetland Protections

wetland impacts

In the aftermath of the pivotal Supreme Court ruling in Sackett v. EPA, a seismic shift has occurred in the legal framework governing the protections of the United States’ waters and wetlands under the Clean Water Act (CWA). The U.S. Army Corps of Engineers, tasked with a significant portion of the Act’s implementation through its permitting program, has issued a detailed memorandum dated March 22, 2024, outlining a nuanced and multifaceted strategy to adapt to and mitigate the implications of this landmark decision.

The crux of the Sackett ruling lies in its narrow reinterpretation of the “Waters of the United States” (WOTUS), a critical term under the CWA that delineates the extent of federal jurisdiction over the nation’s aquatic resources. Historically, the scope of WOTUS has been subject to regulatory definitions since the 1970s, with the latest iteration promulgated on September 8, 2023. The Supreme Court’s decision, however, significantly contracted the ambit of federally protected wetlands, specifically those without a continuous surface connection to larger bodies of water, thereby excluding them from the protections afforded by the Act.

This memo from the Army Corps of Engineers charts a forward-looking course, underscoring the imperative to leverage existing legal authorities and resources to safeguard and enhance the resilience of these now more vulnerable aquatic ecosystems. It articulates a comprehensive strategy encompassing Civil Works Actions and Regulatory Program Actions, each with specific initiatives designed to address the challenges posed by the Sackett decision.

Civil Works Actions

The memo delineates several key actions within the Corps’ Civil Works mission to bolster aquatic ecosystem restoration, technical assistance, and the integration of nature-based solutions. These efforts are premised on a nuanced understanding of the ecosystem services rendered by waters and wetlands, emphasizing their critical role in flood mitigation, water quality enhancement, and habitat provision.

  1. Aquatic Ecosystem Restoration: The directive prioritizes projects that restore hydrologic connectivity and improve the physical and biological integrity of ecosystems impacted by the Sackett decision. This includes an emphasis on Section 206 of the Continuing Authorities Program (CAP), highlighting the strategic allocation of resources towards projects that align with the watershed-based needs elucidated by the ruling.
  2. Technical Assistance Programs: Recognizing the pivotal role of state, local, and tribal entities in aquatic resource management, the memo underscores the Corps’ commitment to providing expert guidance and planning assistance. This is particularly relevant for entities navigating the altered regulatory landscape post-Sackett, with a focus on fostering resilience in ecosystems stripped of federal protection under the narrowed WOTUS definition.
  3. Nature-Based Solutions: The memo advocates for the broader adoption of nature-based solutions in Civil Works projects, aligning with ongoing research and development initiatives. This approach is posited as a means to enhance project sustainability and ecological benefits, especially in light of the reduced jurisdictional scope for wetland protections.

Regulatory Program Actions

In addressing the regulatory implications of the Sackett decision, the memo places a strong emphasis on transparency and compensatory mitigation:

  1. Approved Jurisdictional Determinations: It mandates the continuation of transparent processes in issuing jurisdictional determinations, vital for providing stakeholders with clarity on the jurisdictional status of aquatic resources post-Sackett. This transparency is instrumental in enabling informed decision-making and strategic planning by affected parties.
  2. Compensatory Mitigation: Crucially, the memo reiterates that the jurisdictional status of waters and wetlands, as delineated by the WOTUS definition, does not preclude their eligibility for serving as compensatory mitigation under Corps permits. This policy stance is particularly significant, underscoring the Corps’ commitment to a functional and ecological assessment of aquatic resources for mitigation purposes, beyond the binary jurisdictional categorizations constrained by the Sackett ruling.

The memorandum issued by the U.S. Army Corps of Engineers post-Sackett decision is a testament to the agency’s commitment to navigating the complex interplay between environmental protection and legal mandates. Through a meticulous articulation of strategic actions, the Corps aims to fortify the resilience and ecological integrity of the nation’s waters and wetlands, navigating the nuanced legal terrain sculpted by the Supreme Court’s decision. This document not only outlines a path forward in the wake of reduced federal oversight but also reinforces the enduring value of aquatic ecosystems to the nation’s environmental, economic, and social well-being.

Get the USACOE Memo Here

Wetlands at the Water’s Edge

Navigating the Confluence of WOTUS, SDAM, and OHWM in Ecosystem Assessment

The integration of the Waters of the United States (WOTUS), the Stream Duration Assessment Model (SDAM), and the Ordinary High Water Mark (OHWM) in wetland assessment provides a holistic approach to identifying and protecting these ecologically significant areas. However, this integration is not without its challenges, which stem from the complexity of wetland ecosystems, the nuances of environmental regulation, and the need for precise scientific data. Expanding on these challenges and opportunities reveals the intricacies involved in effective wetland management.

Data Precision and Availability

One of the foremost challenges in integrating WOTUS, SDAM, and OHWM is the need for high-quality, precise data. Wetland assessment requires detailed information on hydrology, soil types, vegetation, and other ecological indicators. The accuracy of this data directly impacts the determination of WOTUS boundaries, the application of SDAM, and the identification of the OHWM. However, obtaining such data can be resource-intensive, requiring extensive field surveys, remote sensing technology, and hydrological modeling. Moreover, the dynamic nature of wetlands, which may change seasonally or due to climate impacts, adds to the complexity of maintaining up-to-date and relevant data.

Interagency Coordination

Effective integration of these assessment tools also depends on robust interagency coordination. The regulatory landscape of wetland protection in the United States involves multiple federal agencies, including the Environmental Protection Agency (EPA), the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service, and state and local entities. Each agency may have different mandates, priorities, and methodologies, which can lead to challenges in achieving a unified approach to wetland assessment and protection. Streamlining communication, data sharing, and regulatory processes among these entities is crucial for the effective implementation of WOTUS, SDAM, and OHWM standards.

Dynamic Nature of Wetland Ecosystems

Wetlands are dynamic systems that respond to a variety of environmental factors, including precipitation patterns, river flow regimes, and human activities. The transient nature of these ecosystems poses a significant challenge to the static frameworks used for their assessment and regulation. For instance, the OHWM might shift due to natural sedimentation processes or human-induced changes in water flow, requiring constant monitoring and adjustment of regulatory boundaries. Similarly, the flow characteristics used in SDAM assessments may vary, affecting the classification of water bodies connected to wetlands. Adapting regulatory approaches to account for these dynamic changes is essential for the long-term protection and management of wetland resources.

Legal and Policy Frameworks

The legal and policy frameworks governing wetland protection, particularly the definition and application of WOTUS, have been subject to significant legal challenges and policy shifts over the years. These changes can lead to uncertainty and inconsistency in wetland assessment and protection efforts. For practitioners and stakeholders, staying informed about current regulations and understanding how they apply to different wetland types and situations is a continual challenge. Ensuring that legal frameworks are both scientifically grounded and flexible enough to adapt to new environmental insights is crucial for effective wetland management.

Conclusion

Integrating WOTUS, SDAM, and OHWM in wetland assessment requires navigating complex environmental, regulatory, and technical landscapes. Addressing the challenges of data precision, interagency coordination, the dynamic nature of wetlands, and evolving legal frameworks is essential for creating a coherent and effective approach to wetland protection. Embracing adaptive management strategies, fostering collaboration among stakeholders, and investing in research and monitoring are key steps toward ensuring that wetlands continue to provide their invaluable ecological services for generations to come.

Scout Motors is Filling In a Lot of Wetlands

COLUMBIA, S.C. — Environmental advocates are closely monitoring the developments at the site of the massive electric vehicle plant slated for Blythewood in Richland County, with growing concerns about its impact on the delicate wetlands in the area.

Construction crews are back to work after receiving a permit from the U.S. Army Corps of Engineers, allowing them to resume work that had initially been halted due to worries about wetlands damage.

This project has garnered significant attention, particularly after a report by WIS 10 news suggested that the Scout site could potentially impact a staggering 70,000 acres of wetlands, nearly 40,000 acres of ponds, and approximately 35,000 linear feet of tributaries. However, it’s important to note that this report is highly inaccurate and continues to be the top result in Google news searches related to the project.

While the correct figures are somewhat lower, they are still concerning. The USACOE’s permit will authorize the filling or disturbance of 74 acres of wetlands, 38 acres of ponds, and 7 miles of creek.

The new Scout Plant is situated off Interstate 77 in the northern part of Richland County, but questions and apprehensions loom large regarding its potential environmental impact, and the community is eagerly awaiting answers.

Blythewood Mayor Sloan Griffin shared his thoughts, saying, “It’s scary. Change is always accompanied by uncertainty. There are two sides to every coin – heads and tails. Some are excited, looking forward to the promise of 4,000 jobs and increased business opportunities in Blythewood, thanks to Scout.”

Construction will soon resume on the vast 1,600-acre site in Blythewood, where the Scout Motors manufacturing plant is set to be located.

Last September, Scout had to pause its work following concerns raised by the Environmental Protection Agency (EPA), which had identified evidence of wetlands damage even before the permit was issued.

Additionally, there’s a noteworthy finding indicating that one of the archeological sites, known as 38RD1468, is recommended for inclusion in the National Register of Historic Places (NRHP) under Criterion D. It holds potential for yielding significant insights into the area’s prehistory. However, it’s important to mention that there was not enough data collected during the Phase II investigations to determine its eligibility under other criteria (Criteria A, B, and C).

The Scout Motors project is undeniably intriguing. They are embarking on the production of electric trucks, a technology yet untested in the transportation of goods. This raises questions about the necessity of destroying 75 acres of wetlands for an unproven technology that may or may not compete effectively with traditional trucking methods. While the transition away from fossil fuels is commendable, it’s crucial to ponder whether it should come at the significant cost of our natural environment. Surely, alternative locations with less environmental impact could have been considered for this venture.