A shocking Supreme Court decision scaling back protections for the majority of the nation’s wetlands has unfurled a hazy regulatory landscape, even as it is set to both open up major development opportunities and threaten public lands across the country.“It is clear from the opinion that isolated ephemeral waters are out,” said Larry Liebesman, a permitting expert and senior adviser at the firm Dawson & Associates, referencing dry streambeds that flow after receiving rain. But, he added, it is “far from clear” whether that also extends to intermittent waters that flow into a regulated water body, or just how to determine whether a wetland is “connected enough to be considered ‘adjoining.'”Intermittent and ephemeral waters that do not run all year are also in peril after Sackett. That will affect Western lands where waters often run dry for much of the year but play a vital role in their ecosystems.The National Parks Conservation Association said the ruling would have sprawling implications for the U.S. National Park System, where two-thirds of waters are already threatened by upstream pollution.The Army Corps of Engineers has placed a pause on key wetlands determinations pending the release of guidance explaining the impact of the Sackett ruling.The landscape has changed dramatically for any entity seeking a permit. Section 404 of the Clean Water Act governs the discharge of dredged or fill material into U.S. waters, with only three states currently overseeing their own programs and the rest subject to federal oversight.“The practical implications of the decision are that federal Clean Water Act permits will no longer be required in many, if not most, situations where they previously were required,” offered Ben Cowan, an environmental partner at Locke Lord’s Houston office. “This will remove one obstacle to project development and, as importantly, will provide much greater clarity as to whether or not a project will require a permit.”Legal experts agree that EPA and the Army Corps will also need to go back to the drawing board and revise their rule, although the ultimate outcome is unclear.Cowan said the agencies could try to push their jurisdiction around what constitutes a “continuous surface connection.” But for now, wetlands protection will largely fall to the states, which do not tend to have robust programs in place for overseeing those areas.“The question is to what extent these states may enact laws and policies to cover formerly regulated waters,” said Liebesman.
