Agencies Take Action to Protect Wetlands, But Avoid Key WOTUS Questions

Last week, the Army Corps of Engineers (Corps) issued a memo that highlights how the Corps will protect non-jurisdictional features through civil works and regulatory program actions following the Supreme Court’s decision in Sackett v. EPA. Actions include:

• Continuing to make information regarding approved jurisdictional determinations available to the public, including posting on their website the Corps’ document stating the presence or absence of waters of the United States on a parcel or a written statement and map identifying the limits of waters of the United States on a parcel.
• Continuing to evaluate compensatory mitigation proposals to determine whether the proposal is sufficient to offset losses of aquatic resource functions and services caused by permitted activities, regardless of jurisdictional status of the aquatic and other resources provided by a compensatory mitigation project.

The memo also outlines key deadlines:

• By July 20, 2024, the Corps must report the compliance status with its mitigation policy across Corps districts, including how many Corps districts have been following this policy since the issuance of the 2008 Mitigation Rule. If Corps districts have not been following the policy, the Corps must report what next steps should occur to achieve compliance, as well as the number and locations of existing mitigation banks and in lieu fee projects.
• By March 22, 2025, the Corps will provide a comprehensive status update on the implications of the Sackett decision and the actions taken under the directives in its memo.

A series of field memos on epa.gov — for implementing the 2023 rule and the pre-2015 regulatory regime consistent with Sackett — also provide guidance to field staff on how to make jurisdictional determinations when they encounter similar fact patterns. These memos touch on the following topics: stream order, when ponds can be identified as tributaries, when wetlands are considered adjacent and should be looked at as one wetland, waste treatment systems and roadside ditches, and how to identify stream reach when considering relatively permanent flow.

Despite these actions, however, uncertainty remains. NAHB continues to encourage the agencies to clarify the definition of “relatively permanent” and “continuous surface connection,” which have allowed continued delays and federal overreach during the wetlands permitting process.

To help NAHB better understand the impact the WOTUS rule is having on the home building industry, we are asking NAHB members to share testimonials.

Visit the WOTUS section on nahb.org to learn more.