Since the U.S. Supreme Court decision on Sackett v. EPA on May 25, 2023, the jurisdiction of Waters of the U.S. has been under review by the U.S. Army Corps of Engineers and U.S. Environmental Protection Agency. On August 28, 2023, 33 CFR 328.3 was updated to reflect the regulatory changes. These changes primarily involved removing language on Waters of the U.S. that do not have a continuous surface connection and are not directly adjacent to relatively permanent bodies of water. However, the amendment to the CFR is not the final rule and does not represent a final agency determination or official policy.
If these changes ultimately align with the agency’s policies, it will remove many wetlands across the country from federal jurisdiction. Although not explicitly stated, it also may remove ephemeral streams from federal jurisdiction.
Ultimately, it will be dependent upon each state to determine whether these isolated features are protected by state law. In Ohio for instance, isolated wetlands are protected under Ohio Revised Code (ORC) 6111 and require an isolated wetland permit through the Ohio Environmental Protection Agency. Ohio House bill 175, passed in 2022, changed the definition of waters of the state in ORC 6111 to exclude ephemeral streams and they are therefore, non-jurisdictional.
With the everchanging regulatory landscape for Waters of the U.S. and other regulated features, navigating these policies can be difficult. If you have questions about permitting requirements, please feel free to contact us.
Mathew Aldridge, CE