In late August, the EPA and Department of the Army announced their updated definition of what qualifies as “waters of the United States,” and thus under their jurisdiction to protect and regulate. The definition was amended to remove the inclusion of a wetland that was considered a “significant nexus” to a waterway; now the federal government has no regulatory authority over these wetlands. This change comes after the US Supreme Court ruled in Sackett v EPA in May 2023 to narrow the scope of jurisdictional wetlands under the Clean Water Act.
The action we’re seeing from the agencies now is meant to clarify what the federal government can regulate and what it cannot. State, Tribal, and local entities may choose to regulate wetlands. This change is bound to impact many aspects of renewable energy and other development projects of our clients.
Here are 3 key takeaways to keep in mind:
- Less federal permitting requirements. Most likely, this change means less permitting and coordinating with the US Army Corps of Engineers on projects. However, in many states – including our home state of PA – it doesn’t totally take away the need to get permits. The PA Department of Wetlands still enforces the previous definition of protection, at this point. Each state will require different standards, which is something BAI will be keeping up with.
- You should double check on all current projects. If you have any projects currently in the permitting, delineation, jurisdictional, or determination phase with the US Army Corps of Engineers, you should double check to see if your project is impacted by this change. This could also include joint permits with the US Army Corps of Engineers.
- Stay tuned – it’s an ongoing story. We’re all learning how this will impact our business and the environment.
BAI is working hard to understand and comply with the new federal regulations and convey this information to our clients. If you have questions or would like to go deeper on this topic, please reach out here!
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