Virginia DEQ has worked out an approach to splitting the difference between economic development and protecting wetlands and streams in light of the Trump Supreme Court decision in Sackett vs. U.S. Environmental Protection Agency.
The ruling in the case limits Clean Water Act protection for wetlands to those with a “continuous surface connection” to other “Waters of the United States,” which will remove federal protections for the majority of the nation’s wetlands.
Previous rulings from non-Trump-majority high courts had protected any wetlands with a “significant nexus” to Waters of the U.S., and for decades the Clean Water Act has covered wetlands that are “adjacent” to those waters.
In Sackett v. EPA, the court found that a landowner did not need a federal Clean Water Act permit to fill in a wetland lacking a “continuous surface connection” to a water body flowing into Idaho’s popular Priest Lake, which provides important cutthroat trout habitat.
The ruling is the latest in a decades-long debate over which streams, rivers, and wetlands should be protected by the Clean Water Act. In 2015, the Obama administration approved a Clean Water Rule, which would have confirmed protections for small “ephemeral” and “intermittent” streams, headwaters, and wetlands.
That rule, though, was blocked by the courts, repealed by the Trump EPA, and briefly replaced with the Navigable Waters Protection Rule, which offered weaker protections for small streams.
The Biden administration EPA finalized a new rule in March, which reinstated Clean Water Act coverage for millions of miles of streams and millions of acres of wetlands.
The May 25 Supreme Court ruling in Sackett will almost certainly lead to more confusion and litigation in the coming years over the Clean Water Act, the revised Waters of the U.S. rule, and protections for wetlands and streams.
As detailed in a June 29 memo to stakeholders, DEQ will make its own State Surface Water Determinations to ensure that the Sackett decision does not hinder efficient processing of Virginia Water Protection permits.
Despite uncertainty regarding what changes will be implemented at the federal level, Virginia’s comprehensive definition of “state waters” provides clarity on the geographical limits and type of wetlands and streams regulated at the state level in Virginia.
Currently, DEQ relies on the U.S. Army Corps of Engineers to review delineations of wetlands and other surface waters. While the Corps has halted this process causing uncertainty in permit approval, state law allows DEQ to make its own SSWDs for permits. DEQ will expand the ability to work with private sector Professional Wetland Delineators certified by the Virginia Department of Professional and Occupational Regulation, to restore certainty in the permitting process and allow projects to move forward in a timely manner.
“Balanced economic development and environmental protection are integrally linked,” said DEQ Director Michael Rolband. “We are doing everything possible to ensure that the Sackett decision does not harm Virginia’s growing economy or environment.”
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Chris Graham
