Last week, the Environmental Protection Agency (EPA) posted several documents related to environmental permitting and the regulatory changes stemming from the U.S. Supreme Court’s 2023 Sackett decision. These documents also cover procedures for review of Draft Jurisdictional Determinations (JDs) by EPA Headquarters and the Office of the Assistant Secretary of the Army for Civil Works (OASA(CW)). Documents include (1) an extension of the existing coordination memorandum between EPA and the Army and (2) three case-specific JDs reviews which involve the use of pipes and culverts under roads as continuous surface connections. The documents are:
An extension of the Joint Coordination memoranda between the Department of the Army, the Army Corps of Engineers, and the EPA. Dated June 25, 2024, this provides an extension of the procedures for review of draft JDs conducted by Corps Districts until March 27, 2025.
A memoranda on a draft JD by the Philadelphia District (NAP-2023-01223) that provides a review of a JD where two wetlands have been determined to be adjacent wetlands, and therefore jurisdictional, because they each have a continuous surface connection to relatively permanent waters. The connections in this case are pipes and culverts under a road which are relatively short and have flowing water.
A memoranda on a draft JD by the Galveston District (SWG-2023-00284) that provides a review of a JD where one wetland has been determined to be adjacent wetland, and therefore jurisdictional, because it has a continuous surface connection to relatively permanent waters. The connections in this case are a pipe under a road that was constructed to ensure the road was not overtopped by flooding. The pipe is relatively short and has flowing water thereby forming a continuous hydrologic connection.
A memoranda on a draft JD by the Kansas City District (NWK-2022-00809) that provides a review of a JD where three wetlands have been determined to be not jurisdictional because they do not have a continuous surface connection to relatively permanent waters. The connections in this case are pipes and culverts running under a road but are rather long and do not have continuous flowing water.
These three new site-specific cases address the thorny issue of adjacency as now defined by the regulations post-Sackett and the need for a continuous surface connection. In the first two cases, EPA and the Corps determined wetlands connected by relatively short pipes, drainage ditch or culverts under roads where there was clear flowing water constitute a “continuous surface connection.” However, in the third case, EPA and the Corps determined that a wetland connected by a relatively long pipe or culvert with only weak indictors of flowing water does not constitute a “continuous surface connection.” Combined, these EPA documents will shape how the regulated public must prudently navigate the post-Sackett landscape.
Mark Sudol
Senior Advisor
Prior to joining Dawson & Associates, Mark was Chief of the U.S. Army Corps of Engineers Regulatory Program and oversaw the Corps’ regulatory responses to U.S. Supreme Court’s Rapanos and Northern Cook County decisions.