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Last week, ACEC hosted a webinar on the recent U.S. Supreme Court ruling on the scope of federal jurisdiction under the Clean Water Act and the implications for engineering firms and their clients.

The Sackett decision produced a seismic shift in interpretation of the definition of “Waters of the United States.” The Supreme Court took a much narrower view of the Clean Water Act’s jurisdictional reach from previous interpretations. On the program, legal experts from Venable LLP’s environmental practice group reviewed the key elements of the ruling and looked ahead to potential federal and state regulatory actions in reaction to this momentous Supreme Court decision.

Participants in the webinar learned that the Supreme Court held that the “significant nexus” test – utilized based on a previous court’s plurality decision, and the centerpiece of the Biden Administration’s regulatory approach – is not consistent with the Clean Water Act. The Court established a much stricter test, finding that federal agency reach extends to only those “wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right,” so that they are “indistinguishable” from those waters.

When considering federal jurisdiction over a wetland and relevant permits, the EPA or the Army Corps must establish that the adjacent body of water is “a relatively permanent body of water connected to traditional interstate navigable waters” (i.e., a water of the United States); and the wetland has a “continuous surface connection” with the adjacent water, “making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” A number of legal questions remain, such as the handling of intermittent streams, temporary interruptions, and manmade structures, among others.

Following the ruling, many USACE districts have paused issuing jurisdictional determinations, and the Corps is also reconsidering previously issued determinations made under the now-invalidated regulation. The Venable presenters informed participants that the EPA may issue an updated rule by September 1, 2023.

In response to the ruling, many states are embarking on their own regulatory reactions.

The recorded webinar exploring these issues is available for purchase and download.

Date

August 18, 2023

Category

ACEC NEWS / ADVOCACY, ADVOCACY / EDUCATION

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