On May 25th in a unanimous decision, the Supreme Court ruled in Sackett v. Environmental Protection Agency (EPA) that only wetlands with a “continuous surface connection” to another wetland or waterbody are covered under the Clean Water Act.
This recent decision repeals the ruling which became effective on March 20, 2023, which had a strong focus on whether potentially jurisdictional features had a “significant nexus” to any other wetland or waterbody. This decision by the court will force the EPA and U.S. Army Corps of Engineers (USACE) to revise the regulations yet again to determine a new scope under which to review potentially jurisdictional features.
We anticipate the USACE will provide additional guidance over the next several months but do not foresee any quick answers or revised regulations. In the meantime, projects pursuing an “Approved Jurisdictional Determination” may be on hold until official guidance has been formulated. Projects pursuing a “Preliminary Jurisdictional Determination” will more likely be approved in the short term.
We will continue to monitor the situation, including outreach to the US Army Corps office in Buffalo. This outreach will also include inquiries as to the status of BME projects currently under review by the USACE. Updates will be provided when more information becomes available.
Please call us if you have any questions regarding wetland delineations, mitigation design, permitting, or USACE/NYSDEC regulations.
