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.

Wetland Mitigation Banking

Wetland mitigation banking is an environmental policy tool used to compensate for the loss of wetland functions and values that may occur due to permitted development activities. It represents a market-based approach that allows for the restoration, creation, enhancement, or in some cases, preservation of wetlands to offset impacts from development. Mitigation banks are sites where wetlands and other aquatic resources are restored, created, enhanced, or, in exceptional cases, preserved expressly for the purpose of providing compensatory mitigation in advance of authorized impacts to similar ecosystem types.

History and Regulatory Framework

The concept of wetland mitigation banking emerged in the United States in the 1990s as a response to the loss of wetlands and the requirements of the Clean Water Act (CWA). Section 404 of the CWA establishes a program to regulate the discharge of dredged or fill material into waters of the United States, including wetlands. The U.S. Army Corps of Engineers (USACE) is tasked with permitting such activities, while the Environmental Protection Agency (EPA) provides oversight.

The goal of the CWA is to achieve “no net loss” of wetlands, a policy which has been supported by successive administrations since the late 1980s. Wetland mitigation banking became a practical tool to achieve this goal, providing a way to compensate for wetland losses with the restoration or creation of wetlands elsewhere, ideally leading to equal or greater ecological benefit.

Implementation of Wetland Mitigation Banking

Mitigation banking works on the principle of wetland credits and debits. When wetlands are impacted by development, a debit is incurred, which must then be compensated by purchasing credits from a wetland mitigation bank. These banks are sites where wetlands have been restored or created with the explicit purpose of providing such credits.

The banks themselves are usually operated by private entities, non-profit organizations, or government agencies. They must adhere to strict criteria regarding the ecological restoration and must have a long-term management plan to ensure the persistence of the wetland functions and values over time. Mitigation banks are required to establish financial assurances, such as trusts or letters of credit, to ensure that sufficient funds are available for long-term management.

Benefits of Wetland Mitigation Banking

Mitigation banking offers several advantages over traditional project-by-project mitigation. The scale of mitigation banking often allows for a more comprehensive approach to restoring wetland functions, such as hydrology, water quality, and habitat for wildlife. By consolidating mitigation efforts, banks can potentially restore larger, more ecologically valuable wetlands, rather than piecemeal, often less successful, on-site mitigation efforts.

Moreover, mitigation banking provides a more efficient permitting process for developers. Since the bank sites are pre-approved, developers can purchase credits quickly, allowing for timely project advancement while ensuring that mitigation requirements are met.

Economically, mitigation banking has fostered a new industry, creating jobs and opportunities for environmental restoration and management. It encourages private investment in natural resources and leverages market forces to achieve environmental objectives.

Challenges of Wetland Mitigation Banking

Despite its potential benefits, wetland mitigation banking faces several challenges. The success of a mitigation bank depends on the ecological success of the wetlands restored or created, which can take years or even decades to fully realize. The science of wetland restoration is complex, and outcomes are not guaranteed.

The regulatory framework around wetland mitigation banking can also be complex and variable across different USACE districts, leading to uncertainty for bank developers and customers. There’s also the challenge of ensuring that the mitigation banks provide a level of ecological function equivalent to the wetlands that were lost, known as “functional equivalency.”

Furthermore, there is the issue of “service area,” the geographic limit within which a bank can sell credits. It is essential to ensure that credits are used within an ecologically appropriate distance to maintain landscape-level ecological integrity.

Future Prospects

As recognition of the importance of wetlands to biodiversity, climate regulation, and water quality continues to grow, wetland mitigation banking may become even more prominent in environmental policy and conservation efforts. Innovations in restoration ecology, increased regulatory clarity, and new financing mechanisms could enhance the effectiveness and appeal of wetland mitigation banking.

In the face of climate change, wetlands play a critical role in carbon sequestration and in buffering against extreme weather events, such as storms and floods. Wetland mitigation banks can be strategically located to not only replace lost wetland functions but also to contribute to climate adaptation and resilience.

The use of advanced monitoring technologies, including remote sensing and ecological modeling, can improve the assessment and long-term management of mitigation banks. Additionally, there’s potential for integrating wetland mitigation banking with other market-based conservation tools, like conservation banking for endangered species, which could lead to more comprehensive ecosystem-based management approaches.

Wetland mitigation banking represents an innovative intersection of environmental science, policy, and market economics. It offers a pragmatic solution to the complex problem of wetland loss, aligning economic development with conservation objectives. While it presents challenges, its evolution and refinement could be instrumental in advancing the goal of no net loss of wetlands.

As society moves forward in developing sustainable strategies for land use, mitigation banking will likely continue to play a vital role in reconciling development pressures with the imperative to preserve vital wetland ecosystems. Its success will depend not only on sound science and effective regulation but also on the continued collaboration between developers, conservationists, regulators, and the public. With ongoing attention to these factors, wetland mitigation banking has the potential to serve as a model for balancing human needs with the ecological imperatives of our time.

A day in the life of a wetland scientist

In the field, the wetland scientist engages in a variety of specialized tasks, including soil sampling to identify hydric soils, conducting thorough vegetation surveys, and assessing wetland hydrology through both direct and indirect means. These activities require a keen eye for detail, extensive knowledge of wetland ecosystems, and the ability to work effectively in challenging outdoor conditions. Additionally, the role involves meaningful interactions with local communities, landowners, and regulatory bodies, emphasizing the importance of wetlands in ecological balance and sustainable land use.

The day of a wetland scientist is not just about fieldwork; it also involves critical analysis and documentation back at the office or lab. Here, the scientist delves into data interpretation, report writing, and consultation with environmental experts, ensuring that their findings contribute to broader conservation efforts and comply with environmental regulations. The narrative also emphasizes the importance of continuous learning and professional development in the field of wetland science. This commitment to staying abreast of the latest research, technological advancements, and regulatory changes is vital for effective wetland management and protection.

  • Early Morning Research and Preparation: The scientist’s day begins with reviewing satellite images, wetland delineation protocols, and local environmental regulations. They ensure that all their equipment, including soil coring tools and water quality kits, is ready for the day.
  • Travel to the Wetland Site: The journey to the wetland site might be an adventure, often traversing through less-traveled paths. The scientist plans their route, considering the day’s objectives and the logistics of reaching the site.
  • Initial Site Assessment: Upon arrival at the wetland, the scientist conducts an initial survey, looking for visible indicators of wetland boundaries and making preliminary notes.
  • Detailed Wetland Delineation Work: The morning is spent in intense fieldwork, including soil sampling, vegetation identification, and hydrology assessment, to accurately delineate the wetland boundaries.
  • Fun and Exploratory Lunch Break: By midday, it’s time for a well-deserved break. The scientist often takes this opportunity to explore local eateries, enjoying the chance to discover unique and interesting restaurants in the area. This lunch break becomes a mini-adventure, offering a delightful pause from the fieldwork and a chance to savor the local cuisine.
  • Post-Lunch Delineation and Data Collection: After lunch, the scientist returns to the field, possibly revisiting certain areas for additional verification or moving to new sections for further delineation.
  • Community Interaction and Educational Outreach: The afternoon may also include interactions with local communities, landowners, or educational groups, discussing the day’s findings and the importance of wetland conservation.
  • Return to Base for Analysis and Reporting: Back at their office or lab, the scientist analyzes the collected data, begins processing samples, and starts drafting reports based on the day’s delineation work.
  • Consultations and Collaborations: The scientist might consult with environmental agencies or collaborate with colleagues, ensuring that the delineation aligns with regulatory standards and contributes to broader environmental research.
  • Evening Review, Planning, and Networking: The day concludes with a review of the work done, updating project files, and perhaps participating in professional networking activities, staying connected with the wider scientific community.
  • Continued Learning and Research: The scientist spends time in the evening catching up on the latest research in wetland ecology and planning for future professional development opportunities.
  • Relaxation and Personal Time: Finally, the scientist unwinds, reflecting on the day’s work and the culinary adventure they enjoyed at lunch, recharging for the next day’s challenges.

The 2024 Wetland Scientist Jobs Outlook: Navigating a Critical Ecosystem’s Future

The Rise of Wetland Science as a Career

As global environmental concerns continue to escalate, the field of wetland science has become increasingly significant. The year 2024 projects a fascinating era for wetland scientists, where their expertise is not only sought after but also crucial for the health of our planet. These scientists are on the front lines of conservation, research, and policy-making, dealing with issues from climate change mitigation to habitat protection and biodiversity conservation.

The Demand for Wetland Scientists in 2024

The job outlook for wetland scientists in 2024 remains robust and growing. With a heightened global focus on environmental sustainability and wetland conservation, wetland scientists are in high demand. Their skills are crucial for:

  1. Assessing Wetland Health: Evaluating the conditions of wetlands, identifying stress factors, and implementing conservation strategies.
  2. Regulatory Compliance: Ensuring that construction, development, and land use comply with environmental laws and regulations, particularly those that protect wetland areas.
  3. Climate Change Mitigation: Understanding the role of wetlands in carbon sequestration and their impact on global climate patterns.
  4. Restoration Projects: Working on the restoration of degraded wetland areas to their natural state, a vital component in preserving biodiversity and maintaining ecosystem services.
  5. Research and Education: Conducting research on wetland ecosystems and disseminating knowledge to stakeholders, policymakers, and the public.

Education and Skill Development

The path to becoming a wetland scientist often begins with a degree in environmental science, ecology, biology, or a related field. As the discipline grows, so does the complexity of the skill set required. In 2024, successful wetland scientists will likely need:

  • Advanced degrees for higher-level positions.
  • Strong background in GIS (Geographic Information Systems) and remote sensing technology.
  • Proficiency in data analysis and modeling software.
  • In-depth understanding of local, national, and international environmental laws.
  • Soft skills such as project management, communication, and stakeholder engagement.

Specialization in wetland science through certifications like the Professional Wetland Scientist (PWS) certification by the Society of Wetland Scientists can also enhance job prospects.

Industry Trends Influencing Job Prospects

Several trends are shaping the job market for wetland scientists in 2024:

  1. Green Infrastructure Projects: The push for sustainable development includes the creation of urban wetlands for stormwater management, requiring wetland scientists for design and monitoring.
  2. Policy and Advocacy: International treaties and national policies focusing on wetland preservation are expanding the role of wetland scientists in policy advisement and implementation.
  3. Private Sector Engagement: Increased corporate responsibility and sustainability goals mean more private companies are hiring wetland scientists for environmental impact assessments and sustainability planning.

Geographical Hotspots for Wetland Science Jobs

Certain regions will likely emerge as hotspots for wetland science careers:

  • Coastal areas affected by sea-level rise and increased storm activity.
  • Urban centers implementing green infrastructure initiatives.
  • Countries with significant wetland biodiversity, such as Brazil, Indonesia, and the Congo Basin, where conservation efforts are critical.

Challenges and Opportunities

The road ahead for wetland scientists is not without its challenges:

  • Funding Constraints: Economic downturns and shifting political landscapes can impact funding for environmental initiatives and research.
  • Technological Advancements: Keeping up with rapid technological changes in data collection and analysis is necessary.
  • Interdisciplinary Collaboration: Working with professionals from other fields, such as urban planners and engineers, is essential for comprehensive wetland management.

Conversely, these challenges bring opportunities:

  • Innovative Solutions: There’s a growing need for innovative approaches to wetland conservation and restoration, which can lead to new job roles and specializations.
  • Public Engagement: Increasing public awareness of wetland benefits can lead to more community-based wetland projects, expanding the roles of educators and citizen science coordinators.
  • International Cooperation: As wetlands are a global concern, there are opportunities for work in international conservation and policy.

Conclusion: A Positive Outlook with a Note of Urgency

The job outlook for wetland scientists in 2024 is generally positive. The urgency to address environmental challenges ensures that wetland scientists will remain in demand. However, it’s a field that requires constant learning and adaptability to new research, technologies, and evolving environmental policies.

For those aspiring to enter the field or continue their wetland science careers, the time is ripe for action. As guardians of one of the world’s most precious resources, wetland scientists not only have the opportunity to pursue a career with significant growth prospects but also to make a tangible difference in the health of our planet.

EPA and the Department of the Army issue Amended Final Rule Defining WOTUS

By Rick Savage – Carolina Wetlands Association

On August 29, 2023, the U.S. Environmental Protection Agency (EPA) and the Department of the Army announced a final rule that amends the January 2023 definition of “waters of the United States” (WOTUS). The amendments conform the January 2023 definition to the U.S. Supreme Court’s decision in Sackett and will take effect immediately upon publishing in the Federal Register (likely to happen within two weeks)To read the pre-publication version of the revised final rule, go to Pre-publication Version of the Final Rule – Amendments to the Revised Definition of Waters of the United States (epa.gov)

While exact details are yet to be digested, the gist of the ruling is becoming clear.  First, the significant nexus rule has been eliminated; so isolated wetlands are not jurisdictional wetlands, meaning they are not protected under the Clean Water Act.  Second, the new rule requires visual evidence of a continuous surface flow between a wetland and navigable water.  This part of the rule can get complicated as to what constitutes visual evidence of continuous surface flow.  I am sure that this will cause a lot of confusion and some developers will say there is no continuous surface flow and impact the wetland with a permit. 

Suffice it to say, this puts wetlands in North and South Carolina in jeopardy. The NC Department of Environmental Quality has estimated about 2.5 million acres of wetland have lost protection in North Carolina and I am sure a similar number in South Carolina.  The NC legislature could have continued to protect these wetlands; however, the recently passed Farm Bill eliminated state protection of isolated wetlands.   

We all need to brace ourselves for a lot of wetland loss and they are the very resource we need to protect our communities from flooding.  I think it is reasonable to expect more communities to get flooded, to have less clean water, and to have reduced climate resilience as well as miss the many other benefits that our wetlands provide. 

So go out an explore a wetland (before it gets developed?).

August 2023 Definition of Waters of the United States

On August 29, 2023 the US EPA and the US Army Corps of Engineers released a pre-publication version of the conforming amendment to the 2023 definition a Waters of the US. I cannot recall ever having seen a “conforming amendment” in all my years working with this issue. In fact, I am not sure it has ever been done before in any circumstance. I expect the next round of challenges to this rule will focus on this.

The final version of this rule is the weakest version of the Waters of the US we have ever had. The amount of wetlands no longer covered by Clean Water Act protections is the lowest it has ever been including the Navigable Waters Protection Rule era. It is also important to note that the Supreme Court Decision that prompted this new rule was a unanimous (9-0) one. All nine justices were in agreement despite popular media decrying it was the right side of the bench that dominated the Decision.

This is a final rule and becomes effective on the date it is published in the Federal Register. There is no public comment period. I am still unclear as to why the agencies are in such a hurry to not regulate wetlands.

Much of the new rule discusses why it is proper to issue a conforming amendment without a public comment period. The rule itself is fairly brief, in that it provides the edits to the existing Biden rule. The rule itself does not merge the two rules together into a single document. They leave that up to you. However, we have done this for you and the total new conforming rule follows. We will also be hosting a webinar on this new rule on September 28, 2023. Hope to see you there!

Title 33 —Navigation and Navigable Waters

Chapter II —Corps of Engineers, Department of the Army, Department of Defense

Part 328 —Definition of Waters of the United States

Authority: 33 U.S.C. 1251 et seq.

Source: 51 FR 41250, Nov. 13, 1986, unless otherwise noted.

§ 328.3 Definitions.

For the purpose of this regulation these terms are defined as follows:

(a) Waters of the United States means:

(1) Waters which are:

(i)  Currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;

(ii) The territorial seas; or

(iii) Interstate waters,

(2)  Impoundments of waters otherwise defined as waters of the United States under this definition, other than impoundments of waters identified under paragraph (a)(5) of this section;

(3) Tributaries of waters identified in paragraph (a)(1) or (2) of this section that are relatively permanent, standing or continuously flowing bodies of water;

(4) Wetlands adjacent to the following waters:

(i) Waters identified in paragraph (a)(1) of this section; or

(ii) Relatively permanent, standing or continuously flowing bodies of water identified in paragraph (a)(2) or (a)(3) of this section and with a continuous surface connection to those waters.

(5) Intrastate lakes and ponds not identified in paragraphs (a)(1) through (4) of this section that are relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to the waters identified in paragraph (a)(1) or (a)(3) of this section.

(b)  The following are not “waters of the United States” even where they otherwise meet the terms of paragraphs (a)(2) through (5) of this section:

(1)  Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act;

(2)  Prior converted cropland designated by the Secretary of Agriculture. The exclusion would cease upon a change of use, which means that the area is no longer available for the production of agricultural commodities. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA;

(3)  Ditches (including roadside ditches) excavated wholly in and draining only dry land and that do not carry a relatively permanent flow of water;

(4) Artificially irrigated areas that would revert to dry land if the irrigation ceased;

(5)  Artificial lakes or ponds created by excavating or diking dry land to collect and retain water and which are used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing;

(6)  Artificial reflecting or swimming pools or other small ornamental bodies of water created by excavating or diking dry land to retain water for primarily aesthetic reasons;

(7)  Waterfilled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel unless and until the construction or excavation operation is abandoned and the resulting body of water meets the definition of waters of the United States; and

(8)  Swales and erosional features (e.g., gullies, small washes) characterized by low volume, infrequent, or short duration flow.

(c) In this section, the following definitions apply:

(1)  Wetlands means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.

(2)  Adjacent means having a continuous surface connection.

(3)  High tide line means the line of intersection of the land with the water’s surface at the maximum height reached by a rising tide. The high tide line may be determined, in the absence of actual data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, other physical markings or characteristics, vegetation lines, tidal gages, or other suitable means that delineate the general height reached by a rising tide. The line encompasses spring high tides and other high tides that occur with periodic frequency but does not include storm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by strong winds such as those accompanying a hurricane or other intense storm.

(4)  Ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.

(5)  Tidal waters means those waters that rise and fall in a predictable and measurable rhythm or cycle due to the gravitational pulls of the moon and sun. Tidal waters end where the rise and fall of the water surface can no longer be practically measured in a predictable rhythm due to masking by hydrologic, wind, or other effects.

New Update: Sackett v. EPA 2023

On May 25, 2023 the Supreme Court of the US (SCOTUS) issued its unanimous decision on the Sackett v. EPA case. The Courts 9-0 opinion was focused on whether the USEPA could claim Water of the US (WOTUS) jurisdiction on the Sackett’s land using the 2006, Kennedy Significant Nexus (SN) test. The Kennedy SN test arose from a precarious SCOTUS case where the Court was not able to arrive at a majority decision. The fractured 4-1-1 plurality resulted in a US Army Corps of Engineers (USACE) SN guidance that has been in use since 2007.

The Sackett SCOTUS ruling limits the extent of federal jurisdiction to navigable waters and wetlands that are directly connected to these same waters. The wetlands should be “indistinguishable” from the navigable waters. The majority (5) of the Justices supported this reason for restricting EPA.

However, while all nine Justices agreed on the extent of jurisdiction, four of the Justices disagreed with the rational as to why the significant nexus test was inappropriate. These Justices were concerned with the Court being at the center of national environmental policy. This, in their opinion, should be left to Congress.

WOTUS has a long history of debate. At issue is the extent of federal jurisdiction over inland waters that extend beyond riverbanks of navigable waters. The Clean Water Act does not define what a WOTUS is, and it has been the practice of over 40 years to leave that definition to the USEPA and the USACE. This has taken the form of nearly a dozen different WOTUS definitions and guidance that changes with each Presidential Administration. This year the Biden Administration has released a WOTUS rule that uses both the SN test as well as the physical connection test. The latter is now rejected.

The USACE has conveniently issued a new Ordinary High Water Mark (OHWM) manual this year. This manual’s purpose is to define the extent of OHWM in the absence of wetlands. It is in an interim phase which means that it should be used to support an OHWM delineation in addition to the 2005 OHWM definition. Going forward it is easy to see that the OHWM establishment and the extent of wetlands are now legally connected. The wetlands extent must be “indistinguishable” from the OHWM indicators. Perhaps in writing the new manual the USACE had some hint of what the SCOTUS was likely to do. The USACE also lost their WOTUS battle in the 2001 SWACC case with almost the same legal nexus issue as Sackett.

The Justices have called out Congress again asking for a national environmental policy and a clear definition of what the extent of federal jurisdiction should be. This was asked for in 2006 and thus far Congress has been silent on the issue.

Farmers are one of the largest groups to push for WOTUS reform. While the Sackett decision may appear to be a win for the farmers, it really is not. Wetlands are specifically protected by the US Department of Agriculture (USDA) by means of farm subsidy contracts. Simply put, when a farmer agrees to receive federal farm subsidies, the farmer has also agreed to not impact wetlands. This provision of the farm subsidy contract has been in force since the Swamp Buster provisions were revoked in 1990. The USDA does not distinguish between jurisdictional and non-jurisdictional wetlands. USDA wetlands are defined by the Food Security Act Manual which includes and expands on the USACE definition of wetlands. The only relief the farms may receive from the Sackett Decision is that they may not be prosecuted by EPA for isolated wetland impacts. However, they will have to refund their farm subsidies which can run into the millions if they impact a USDA wetland.

One last point regarding some of the rhetoric that is already churning in the media. None of the WOTUS definitions have anything to do with making the water cleaner. It is simply a defines the extent of federal jurisdiction. The assumption is that if the water is regulated it will be cleaner. History seems to work against this precept. The USACE is tasked with developing a permit program to fill in WOTUS. This does not make anything cleaner. The USEPA’s role seems to be unclear. Environmental protection is their mandate, but the tools to nationalize this are limited. Most if not all of the wetland protections come from state laws and rules. It was always the intent of Congress to leave the water quality issues to the state. Perhaps we should look to our local elected officials for leadership in the Waters of the State debate.

Going forward it is unclear if the EPA and USACE will issue new regulations. Regulations are usually issued as an interpretation of a Congressional Act. The SCOTUS ruling seems fairly clear and may not necessitate the need for further regulations. Even if it does, it would be close to a year before a regulation could be authorized due to the nature of the process.

Several Justices were concerned that the federal government’s rules should not require experts to interpret. Their decision should be clear enough that anyone should be able to implement it. However, the process of identifying a wetland is still a technical one that does require an expert. Furthermore, it could be argued that if the Justice’s concerns were realized then we would also have no need for accountants, CPAs, or even attorneys. To that end, our jobs as wetland professionals are safe.

Half Of The U.S. No Longer Subject To The New WOTUS Rule

On April 12, 2023, Daniel L. Hovland, a federal judge in North Dakota, temporarily blocked the implementation of the latest “Waters of the United States” (WOTUS) rule. This action affects 24 states and is on the heels of a previous ruling by Jeffrey Vincent Brown, another federal judge for the southern district of Texas, that now excludes Texas and Idaho from the new WOTUS rule. At issue is the codification of the significant nexus test. According to two judges, the new 2023 rule that the balance of harms weighs towards the States. It benefits the public to “ensure that federal agencies do not extend their power beyond the express delegation from Congress.”

Where is WOTUS not in use?

  • West Virginia
  • North Dakota
  • Georgia
  • Iowa
  • Alabama
  • Alaska
  • Arkansas
  • Florida
  • Indiana
  • Kansas
  • Louisiana
  • Mississippi
  • Missouri
  • Montana
  • Nebraska
  • New Hampshire
  • Ohio
  • Oklahoma
  • South Carolina
  • South Dakota
  • Tennessee
  • Utah
  • Virginia
  • Wyoming
  • Texas
  • Idaho

Implications for these states

The impact of the outcome of the Sackett case by the Supreme Court (SCOTUS) is the driver for these two decisions. At issue there is a need to have a new rule before the SCOTUS ruling. A revised rule will clarify whether the Rapanos version of the “significant nexus” test is an appropriate exercise of the EPA’s jurisdiction under the Clean Water Act.

Neither the federal government nor the States know what the controlling test is, and Supreme Court precedent to date has been of scant assistance.  Hopefully, the Supreme Court decision in Sackett will provide some clarity.  The outcome of the Sackett  case may have significant implications for the EPA’s authority to determine jurisdictional waters under the Clean Water Act.  It may also determine the EPA’s ability to enforce the 2023 WOTUS Rule.  Until then, every state will continue to swim in waters of uncertainty, ambiguity, and chaos.

Daniel L. Hovland, District Judge United States District Court

Which definition are they using?

Working in these states is a bit unclear as to which definition should be used. Presumably, the last standing definition was the WOTUS recodification rule of 2019. This rule preceded the infamous 2020 Navigable Waters Rule, which was remanded and vacated in 2021.

It will be difficult to obtain permits and authorizations if federal agencies can’t use the 2023 WOTUS rule in half of the U.S. There is no clarity as to what constitutes a jurisdictional water body, making permitting almost impossible.

We expect a decision on the Sackett case from SCOTUS by the end of the term in June. Even if the Court provides a decision, there is no doubt that the next set of court cases against EPA and the Corps will be to challenge that the 2023 rule is inconsistent with the SCOTUS decision, whatever it may be.

Sources

Fischler, J. (2023). Federal judge temporarily blocks new Biden WOTUS rule in two dozen states. Ohio Capital Journal. Retrieved from: https://ohiocapitaljournal.com/2023/04/18/federal-judge-temporarily-blocks-new-biden-wotus-rule-in-two-dozen-states/

2023 Waters of the United States

This week, the new Waters of the U.S. (WOTUS) rule was enacted. On December 30, 2022, the agencies announced the final “revised definition of ‘waters of the United States” rule. The rule was published in the Federal Register on January 18, 2023, and became effective on March 20, 2023.

The agencies developed this rule with consideration to the relevant provisions of the Clean Water Act and the statute as a whole, relevant Supreme Court case law, and the agencies’ technical expertise after more than 45 years of implementing the longstanding pre-2015 “waters of the United States” framework. This rule also considers the best available science and extensive public comment to establish a definition of “waters of the United States” that supports public health, environmental protection, agricultural activity, and economic growth.

There are numerous lawsuits and challenges to this rule. These come from both sides of the aisle and include several lobbying groups, environmental organizations, states, and tribes. In addition, we are still waiting to hear from the U.S. Supreme Court on the now-infamous Sackett case. This case directly challenges the new WOTUS rule.
The following is the new WOTUS rule. There are several pages associated with the rule, but this is the meat of it.

Part 328 Definition of Waters of the United States- Regulatory Text

  1. The authority citation for part 328 continues to read as follows:
    • Authority: 33 U.S.C. 1251 et seq.

Definitions

  1. Revise § 328.3 to read as follows:
    • For the purpose of this regulation these terms are defined as follows:
      • a) Waters of the United States means:
        • 1) Waters which are:
          • (i) Currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
          • (ii) The territorial seas; or
          • (iii) Interstate waters, including interstate wetlands;
        • (2) Impoundments of waters otherwise defined as waters of the United States under this definition, other than impoundments of waters identified under paragraph (a)(5) of this section;
        • (3) Tributaries of waters identified in paragraph (a)(1) or (2) of this section:
          • (i) That are relatively permanent, standing or continuously flowing bodies of water; or
          • (ii) That either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section;
        • (4) Wetlands adjacent to the following waters:
          • (i) Waters identified in paragraph (a)(1) of this section; or
          • (ii) Relatively permanent, standing or continuously flowing bodies of water identified in paragraph (a)(2) or (a)(3)(i) of this section and with a continuous surface connection to those waters; or
          • (iii) Waters identified in paragraph (a)(2) or (3) of this section when the wetlands either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section;
        • (5) Intrastate lakes and ponds, streams, or wetlands not identified in paragraphs (a)(1) through (4) of this section:
          • (i) That are relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to the waters identified in paragraph (a)(1) or (a)(3)(i) of this section; or
          • (ii) That either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section.
    • (b) The following are not “waters of the United States” even where they otherwise meet the terms of paragraphs (a)(2) through (5) of this section:
      • (1) Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act;
      • (2) Prior converted cropland designated by the Secretary of Agriculture. The exclusion would cease upon a change of use, which means that the area is no longer available for the production of agricultural commodities. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA;
      • (3) Ditches (including roadside ditches) excavated wholly in and draining only dry land and that do not carry a relatively permanent flow of water;
      • (4) Artificially irrigated areas that would revert to dry land if the irrigation ceased;
      • (5) Artificial lakes or ponds created by excavating or diking dry land to collect and retain water and which are used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing;
      • (6) Artificial reflecting or swimming pools or other small ornamental bodies of water created by excavating or diking dry land to retain water for primarily aesthetic reasons;
      • (7) Waterfilled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel unless and until the construction or excavation operation is abandoned and the resulting body of water meets the definition of waters of the United States; and
      • (8) Swales and erosional features ( e.g., gullies, small washes) characterized by low volume, infrequent, or short duration flow.
    • (c) In this section, the following definitions apply:
      • (1) Wetlands means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.
      • (2) Adjacent means bordering, contiguous, or neighboring. Wetlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes, and the like are “adjacent wetlands.”
      • (3) High tide line means the line of intersection of the land with the water’s surface at the maximum height reached by a rising tide. The high tide line may be determined, in the absence of actual data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, other physical markings or characteristics, vegetation lines, tidal gages, or other suitable means that delineate the general height reached by a rising tide. The line encompasses spring high tides and other high tides that occur with periodic frequency but does not include storm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by strong winds such as those accompanying a hurricane or other intense storm.
      • (4) Ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.
      • (5) Tidal waters means those waters that rise and fall in a predictable and measurable rhythm or cycle due to the gravitational pulls of the moon and sun. Tidal waters end where the rise and fall of the water surface can no longer be practically measured in a predictable rhythm due to masking by hydrologic, wind, or other effects.
      • (6) Significantly affect means a material influence on the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section. To determine whether waters, either alone or in combination with similarly situated waters in the region, have a material influence on the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section, the functions identified in paragraph (c)(6)(i) of this section will be assessed and the factors identified in paragraph (c)(6)(ii) of this section will be considered:
        • (i) Functions to be assessed:
          • (A) Contribution of flow;
          • (B) Trapping, transformation, filtering, and transport of materials (including nutrients, sediment, and other pollutants);
          • (C) Retention and attenuation of floodwaters and runoff;
          • (D) Modulation of temperature in waters identified in paragraph (a)(1) of this section; or
          • (E) Provision of habitat and food resources for aquatic species located in waters identified in paragraph (a)(1) of this section;
        • (ii) Factors to be considered:
          • (A) The distance from a water identified in paragraph (a)(1) of this section;
          • (B) Hydrologic factors, such as the frequency, duration, magnitude, timing, and rate of hydrologic connections, including shallow subsurface flow;
          • (C) The size, density, or number of waters that have been determined to be similarly situated;
          • (D) Landscape position and geomorphology; and
          • (E) Climatological variables such as temperature, rainfall, and snowpack.