Understanding the Recent Changes and Their Impact on Wetland Protection

Quick Facts: As of now, it’s business as usual if you live in Washington or Oregon, with no immediate changes. The Hamer team is providing a detailed summary below and will continue to keep you updated on any developments that may require a different approach for assessing your property for critical areas, including wetlands. It's important to note that some landowners in Washington or Oregon may no longer require a 404 Permit from the Corps for impacts to wetlands and streams which are no longer considered jurisdictional and protected under the Clean Water Act. If you have an existing project with us, we will discuss any changes to the permitting and compliance requirements for your project with you individually.

Background: The Case of Sackett v. Environmental Protection Agency

On May 25, 2023, the United States Supreme Court delivered an opinion in a landmark Clean Water Act (CWA) case, with significant implications for federal wetland regulations. The case revolved around private property owners in Idaho who faced violations of the CWA when they began backfilling their land for construction purposes, and some of that land was found to contain protected wetlands. EPA considered these wetlands to be "waters of the United States" due to their proximity to a stream that flowed into Priest Lake, an intrastate navigable waterbody. Although a 30-foot road separated the wetlands from the stream, water flowed under the road, and EPA determined that the wetlands were “adjacent” and had a “significant nexus” to Priest Lake.

Federal Level: Changes in Wetland Regulations

The Supreme Court's interpretation of "waters of the United States" in Section 1362(7) of the CWA has significant implications for wetland protection. The Court clarified that for a wetland to be protected under the CWA, the wetland must have a continuous surface connection with a “water of the United States”—an ocean, river, stream, or lake—such that it is difficult to determine where the “water” ends and the “wetland” begins. Under Sackett v. EPA, for wetlands to be jurisdictional and fall under the protection of the CWA, they must be practically indistinguishable from adjacent bodies of water. As such, the 30-foot road near the Sackett property separating the wetlands and stream was considered to break the required surface water connection. This decision narrows the definition of protected wetlands and emphasizes the need for a continuous surface connection between wetlands and these bodies of water. In effect, this opinion eliminates the "significant nexus" test previously used to determine CWA jurisdiction of wetlands, leaving the "relatively permanent" test from the Rapanos case to determine whether protections under the CWA apply.

State Level: Washington State's Continued Wetland Protection

In Washington state, despite the Supreme Court's decision, wetlands, seasonal and ephemeral streams, and other waters remain protected under state law. The state's Water Pollution Control Act of 1945, along with other state laws, has always provided greater protections for these waterbodies than federal regulations.

The Washington State Department of Ecology has since reiterated the state's commitment to protecting wetlands and other waterbodies. Developers planning activities that could affect these waters still need to apply for review and approval before commencing work in the state. The Washington State Department of Ecology will conduct independent assessments for wetlands and other waters that no longer fall under federal protection.

State Level: Oregon State’s Continued Wetland Protection

Oregon has strong laws to protect wetlands and continues to require permits for projects that remove or add materials in wetlands and waters of the state. The Department of State Lands will continue to oversee Oregon’s Removal-Fill Law and permitting process. The law helps protect the state’s wetlands and waters by requiring permits for activities that remove or add materials in rivers, lakes, streams, wetlands, and more. DSL is responsible for overseeing the removal-fill permitting process and for making permit decisions.

Implications and Future Considerations

The Supreme Court's decision introduces a narrower level of wetland protection under the CWA, emphasizing the need for a continuous surface connection with adjacent bodies of water. This ruling has implications for landowners, regulators, and environmentalists as they navigate the evolving landscape of wetland protection.

At the federal level, the decision has narrowed the scope of wetland coverage under the CWA, potentially excluding certain wetlands and ephemeral streams that do not meet the new criteria. The impacts on water quality and flood control throughout the United States have raised concerns among some justices.

However, in Washington and Oregon state, wetland protection remains the same, with state laws providing comprehensive oversight and evaluation of proposed development projects. The Washington State Department of Ecology has announced it will devote additional resources to reviewing development proposals and issue administrative orders to ensure environmental impacts are assessed and mitigated effectively.

Conclusion

The recent Supreme Court decision in Sackett v. EPA has brought about significant changes in wetland regulations, narrowing the definition of what wetlands are protected at the federal level. However, in Washington State and Oregon, state laws continue to provide essential protections for wetlands, seasonal streams, and other waterbodies.

The Supreme Court Decision can be found here: https://www.supremecourt.gov/opinions/22pdf/21-454_4g15.pdf.

Contact us:

Our team of wetland experts is dedicated to managing wetland ecosystems and ensuring compliance with environmental regulations. We are committed to supporting landowners, developers, and individuals in navigating the complexities of wetland management. If you have any questions, concerns, or would like more information about our wetland services, please don't hesitate to reach out to our team: