Army Corps of Engineers Announces Post-Sackett Wetlands Protection Plans

The U.S. Army Corps of Engineers (ACE) on March 22, 2024, announced its plans for enhancing the protection of the country's wetlands following the U.S. Supreme Court's Sackett v. EPA decision.¹ In Sackett, the Supreme Court waded into the politically and regulatory charged issue of the definition of the "waters of the United States" for purposes of jurisdiction under the Clean Water Act (CWA).² In the majority opinion, the Supreme Court addressed the question of how far federal authority extends past "traditionally navigable waters" such as when a wetland is considered "adjacent" to such a water body and therefore subject to federal jurisdiction. The Court held that "waters of the United States" includes only those waters and wetlands that have a continuous surface connection to traditionally navigable waterways. This forced EPA to amend its definition of Waters of the United States (WOTUS) in a manner that limited the scope of federal authority by limiting the scope of WOTUS to wetlands with a continuous surface connection to traditionally navigable waters and streams that are "relatively permanent, standing or continuously flowing bodies of water."³

While recognizing that certain aquatic resources no longer fall under the ambit of the CWA, ACE declared these wetlands "to be of vital importance to the functioning of healthy watersheds and ecosystems." As a result, the new ACE Memorandum of Understanding (MOU) directs ACE to engage in "specific actions to protect, restore, and enhances our Nation's waters and wetlands that are now more vulnerable [as a result of the Sackett decision]…" Specifically, the MOU directs ACE in carrying out its civil works missions to use the following existing statutory and regulatory authority to ensure protection of wetlands and waterways even if they fall outside the new geographical scope of the CWA:

• Aquatic Ecosystem Restoration: ACE is directed to increase support for Ecosystems Restoration projects, including projects pursued under Section 206 of the Continuing Authorities Program.⁴ The MOU determines projects intended to protect or improve wetlands adjacent to jurisdictional waters of the United States should be prioritized and could receive funding through various sources, including the Infrastructure Investment and Jobs Act of 2021 (IIJA).
• Technical Assistance Programs: ACE emphasizes in the MOU that eligible entities can benefit from various technical assistance programs offered by ACE to "provide meaningful services to communities and state agencies … who may experience a disproportionate burden of reduced water quality, access to nature, and other challenges related to their interactions with our Nation's waters and wetlands due to the Sackett decision."
• Nature-Based Solutions: The MOU also charges ACE with identifying "… current initiatives in place to promote the development and integration of more nature-based solutions into Civil Works planning, design, and construction activities as integral features of projection function and/or mitigation." ACE concluded that "[t]hese nature-based solutions can serve to construct, restore, and/or use wetlands to enhance and protect some of the resources no longer considered jurisdictional as a result of the Sackett decision."
• Transparency in Issuing Approved Jurisdictional Determinations: The MOU states that ACE will provide the public with "the information necessary to assess the full impact of the Sackett decision on aquatic resources and to develop strategies and actions to compensate for reduced federal jurisdiction."
• Compensatory Mitigation: In the MOU, ACE points out that the 2008 "Compensatory Mitigation for Losses of Aquatic Resources" rule,⁵ which promotes compensatory mitigation to offset unavoidable adverse impacts to the waters of the United States through the use of mitigation banks, in-lieu fee (ILF) programs and permittee-responsible mitigation. The MOU provides that "… the Corps will continue 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." This suggests that ACE will require mitigation for impacts that are outside of its jurisdiction. This will surely be controversial and likely challenged.

The MOU provides valuable insight how ACE will continue to use its remaining statutory and regulatory tools to protect the country's wetlands despite the limitations imposed by the Sackett decision. The announcement will likely only continue the long-standing tug-of-war on the jurisdictional limits and meaning of the "waters of the United States."

Notes

¹ 598 U.S. __, 143 S. Ct. 1323 (2023)(Sackett).

² See Holland & Knight's previous alert, "Sackett Decision Provides Clarity, Substantially Restricts Clean Water Act Jurisdiction Scope," May 26, 2023.

³ See Holland & Knight's previous alert, "Waters of the United States Rule Revised in Response to Sackett Decision," Sept. 7, 2023.

33 U.S.C. 1330 et seq.

⁴ See Sect. 206 of the Water Resources Development Act of 1996.

⁵ Compensatory Mitigation for Losses of Aquatic Resources, 73 Fed. Reg. 19670 (April 10, 2008).