Significantly Narrows Scope of Federal Wetlands Permitting
The Supreme Court’s most recent opinion on the Clean Water Act, Sackett v. Environmental Protection Agency, dramatically narrows Federal control over wetlands. Despite Vermont’s relatively robust process for regulating wetlands at the state level, some Vermont wetlands may lose protection due to the ruling.
Sections 404 and 401 of the Clean Water Act regulate and require permits for dredging and filling activities in “waters of the United States,” including “adjacent” wetlands. Prior to the Sackett case, wetlands were “adjacent” if they had a “significant nexus” to traditionally navigable waters like rivers, lakes, and streams. The significant nexus test considered an open-ended list of factors, including anything that created an ecological, biological, or chemical connection to traditionally navigable waters. This test meant many wetlands fell under the Clean Water Act and required federal permitting.
In Sackett, the Court held that a wetland is covered under the Clean Water Act only if it adjoins “a relatively permanent body of water” with a “surface connection . . . making it difficult to determine when the ‘water’ ends and the ‘wetland’ begins.” This test is much narrower, covering fewer wetlands. The new test will be further defined when the Environmental Protection Agency provides guidance on their interpretation of “continuous surface connection.”
Under Vermont’s regulatory scheme, wetlands are divided into three categories: Class I, II, and III, based on their ecological functions and values. Class I and II wetlands provide “significant” functions and values, including among others, flood control, water filtration, and fisheries habitat. These wetlands are identified on Vermont’s significant wetland inventory maps. The Secretary of Natural Resources also has the authority to reclassify wetlands should their function and value change. Any activities in or near Class I and II wetlands, with some exceptions, require a permit. Class III wetlands do not require permits.
Following Sackett, Class I and Class II wetlands will continue to receive state protection whether or not they have a “continuous surface connection”. This includes Class I and II wetlands which lacked a “significant nexus” and have never been subject to federal permitting. Wetlands with significant functions and values, but no “continuous surface connection” will no longer receive the protection of the Clean Water Act. Class III wetlands that do not have a “continuous surface connection” will not be covered by either state or federal law following the Sackett decision. This new gap in wetlands regulation will be an important area to monitor, as the number of Class III wetlands that will no longer be subject to federal permitting is unclear.
The Sackett opinion may also have broader implications than wetland permitting. Other areas of change to keep an eye on are discharge permits under the Clean Water Act and how the new rules will affect water quality more broadly. While Vermont wetlands that exhibit significant functions and values will continue to be covered by the state’s regulatory regime, wetlands, and water quality in states with less stringent regulations may be more affected.
If you have questions about wetlands permits or you have property that will be subject to the permit that you’d like to discuss, please contact any of the attorneys in our Environmental Practice, including Vic Westgate, Andy Raubvogel, Geoff Hand, Malachi Brennan, and Paul Quackenbush.
