Back on August 29, 2023, U.S. EPA issued the rule to conform its regulations to the ruling of the U.S. Supreme Court in Sackett v. EPA which significantly reduced the number of wetlands that are federally protected under the Clean Water Act (CWA). (See, prior post discussing Sackett) The Court limited federal jurisdiction to only wetlands that are adjacent to navigable waters and those with a continuous surface connection to relatively permanent waters adjoining navigable waters.

Following the Supreme Court’s decision in SWANCC v. U.S. ACOE, Ohio enacted protections for so called isolated wetlands under Ohio Revised Code 6111.021 to 6111.028. The term “isolated” refers to wetlands that are not directly adjacent to permanent or navigable waterways. Therefore, in Ohio, a permit is still needed in order to impact isolated wetlands that are not protected under the CWA.

Questions Raised Regarding the Delineation Process

Historically, Ohio EPA has always deferred to the U.S. Army Corps of Engineers (ACOE) with regarding delineating all wetlands in Ohio, both federally regulated and isolated wetlands. Therefore, if a developer is interested in a site that potentially has wetlands, even if there is no evidence of jurisdictional wetlands on the property, the developer still has to initiate the permitting process by contacting the ACOE. Ohio EPA states the following with regard to the ACOE’s responsibility for determining whether there are any wetlands on a property:

The U.S. Army Corps of Engineers has responsibility for:

  • determining whether wetlands exist within a particular project site;
  • confirming the number, boundaries, and acreage of those wetlands;
  • determining whether those wetlands are waters of the U.S. or “isolated.”

Here is the typical process for legally determining the acreage, quality and jurisdictional status of wetlands on property in Ohio:

  1. Developer will retain an environmental consultant that can perform a wetland delineation.
  2. Schedule an onsite site visit with the ACOE.
  3. The developer’s consultant will submit the proposed delineation to the ACOE which includes:
    • The proposed location and acreage of all wetlands onsite
    • Determine the quality of the wetland using the Ohio Rapid Assessment Manual (ORAM) which ranks wetland as Category 1, Category 2 or Category 3
  4. The developer must determine whether to seek a Preliminary Jurisdictional Determination or an Approved Jurisdictional Determination from the ACOE.
    • Preliminary Jurisdictional Determination (Preliminary JD)- Is an expedited process for receiving a wetland delineation, but it presumes all wetlands on the property are jurisdictional. Preliminary JDs are considered “advisory” and may not be administratively appealed. See, 33 CFR 331.2 However, a Preliminary JD can be issued must faster than an Approved JD.
    • Approved Jurisdictional Determination (Approved JD)- A formal delineation which determines whether wetlands are federally protected or isolated wetlands regulated exclusively under Ohio law. An Approved JD is valid for 5 years and it can be administratively appealed if you disagree with the ACOE’s determination as whether wetlands were federally regulated.

Because Ohio EPA defers to the ACOE with regard to the process for delineating wetlands, a developer must navigate two regulatory agencies and extended timelines for its permitting process at every potential development site.

Does the Delineation Process Need to Change Post-Sackett?

After the Sackett decision, based on information from U.S. EPA cited in the Washington Post, it is projected that 63% of the wetlands nationally could no longer be federally protected. Sackett limits federal jurisdiction to only wetlands that are adjacent to navigable waters and those with a continuous surface connection to relatively permanent waters adjoining navigable waters. This means that at many proposed development sites, it will be very obvious if there are likely no federally protected wetlands if there are no such permanent waterbodies on the property.

Even though the majority of wetlands will no longer be federally protected and regardless if it is obvious the only wetlands are isolated, a developer still must go through the ACOE to delineate any wetlands on a proposed development site. Given the limitations on federal jurisdiction Post-Sackett it may no longer make sense for the Ohio EPA to defer to the ACOE on all wetland delineations.