Photo credit: Star Tribune
Update to the Clean Water Act Policy
If you have owned land in the upper Midwest you have likely dealt with wetlands throughout your experiences, and maybe even a permit or two has been required. Today we are focusing on jurisdiction and control of permitting on wetlands and wetland impacts.
One common mistake owners make is to argue what is or is not a wetland. Although some subjectivity exists, wetland boundaries are fairly easily identified, and the definition for delineating wetlands has been consistent and generally agreed to in the industry for an extended period of time. The big discussion has always been who has jurisdiction? In May of this year the Supreme Court ruled that the Clean Water Act (Federal Jurisdiction) is only applicable to wetlands with a direct indiscernible connection to navigable bodies of water of the United States.
How does this impact landowners in the upper Midwest?
After consulting with legal counsel regarding what changes could result from this ruling, our understanding is below.
If a project is currently active and has a previously completed jurisdictional determination (JD), it is recommended to reach out to the Core of Engineers for a new determination, based on the recent findings by the supreme court on Sackett v. EPA Case No. 21-454.
For new projects impacting a wetland having a clear, direct and indistinguishable connection to a navigable water of the United States, it is recommended the Core of Engineers be asked for a jurisdictional determination.
Adjacent and separated wetlands from permanently navigable bodies of water are not covered by the Clean Water Act and federally regulated. This includes isolated wetlands and prairie potholes as commonly found across the upper Midwest.
What has not changed for landowners?
The definition of wetlands, as well as any state and/or local laws regarding wetlands did not change with this ruling. In North Dakota this means additional permitting is required if the drainage area to the wetland exceeds 80 acres. In MN this means any impact to wetlands is regulated by the state. A wetland determination and a conversation with your local government (many times the SWCD representative) should be had early in the project programming phase.
Responsibilities for environmentally sound development also remain the same. Preserving natural drainages and environmental features often coincide with smart and efficient site design with limited impact to a projects bottom line.
Update 8-29-23 – The EPA announced new federal permitting guidance. Further details can be found here.