Charles A. Spitulnik CRC’s 2023 Champion of Commuter Rail

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The Firm congratulates partner Charles A. Spitulnik as he is recognized as the Commuter Rail Coalition’s (CRC) 2023 Champion of Commuter Rail. The award spotlights heroes of the industry, ensuring that the transformations that have resulted from their efforts, grit and determination, are properly recognized and feted for the significance of their contributions. Charles has over 25 years of experience representing transit clients, leaving a legacy through his hard work to improve the industry.

Kaplan Kirsch & Rockwell Helps Secure Settlement to Improve Agency Transparency and Reduce Toxic Emissions from Industrial Facilities in Oakland, CA

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Kaplan Kirsch & Rockwell LLP is proud to have partnered with the UC Berkeley Environmental Law Clinic to help Communities for a Better Environment (“CBE”), one of the nation’s preeminent environmental justice organizations, secure a settlement that will require the Bay Area Air Quality Management District (“BAAQMD”) to enhance its industrial facility risk reduction program, increase transparency in rulemaking processes, and reduce health risks from toxic industrial emissions in East Oakland, California. Firm attorneys Wil Mumby and Matt Adams worked closely with the Clinic and CBE to bring the underlying lawsuit against AB&I Foundry and BAAQMD. In addition to securing guarantees of a better public process from BAAQMD, the lawsuit put an end to AB&I’s toxic and noxious air pollution in East Oakland and nearby communities. The Firm is proud to have played a role in these important steps toward healthier air quality and environmental justice in the San Francisco Bay Area, and we look forward to continuing to support the Clinic in fostering the next generation of impactful environmental lawyers.

D.C. Circuit Court of Appeals Rejects Federal Approval of Uinta Basin Railway

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On August 18, 2023, the U.S. Court of Appeals for the D.C. Circuit invalidated the federal Surface Transportation Board’s approval and environmental review of an 88-mile rail line intended to facilitate new oil and gas development in Utah and transport billions of gallons of waxy crude oil out of Utah’s Uinta Basin annually.  Kaplan Kirsch & Rockwell represented Eagle County, Colorado in the successful legal challenge to the Board’s approval of the $1 billion dollar rail project, which would have caused the addition of up to 18 miles of trains hauling oil each day on an existing line through the Rocky Mountains within feet of the Colorado River. 

In a definitive and detailed legal opinion, the Court of Appeals found that the Board had failed to adequately consider the project’s “significant potential for environmental harm” in violation of the National Environmental Policy Act and Interstate Commerce Commission Termination Act.  Among Eagle County’s legal claims, the Court of Appeals agreed that the Board had failed to consider the downline environmental effects of transporting billions of gallons of oil through Colorado, including rail accidents along the Colorado River and the risk of wildfires posed by long, heavy oil trains. In addition, the Court of Appeals found that the Board’s authorization of the project violated its own rail statute by failing to adequately “weigh the project’s uncertain financial viability and the full potential for environmental harm against the transportation benefits it identified.”

Because of the significant deficiencies in the Board’s rail and environmental analyses, the Court of Appeals vacated the Board’s authorization of the project as well as the Board’s environmental review.  The Court of Appeals’ decision can be downloaded here.

Eagle County was represented by firm attorneys Nate Hunt, Bob Randall, and Christian Alexander and Eagle County Attorney Bryan Treu.

50% of Firm Partners Recognized Among The Best Lawyers in America 2024

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Kaplan Kirsch & Rockwell is proud to announce that 50% of Firm partners were recognized in the The Best Lawyers in America ® 2024. The Best Lawyers in America is the oldest and most respected peer-review publication company in the legal profession. Recognition is widely regarded by both clients and legal professionals as a significant honor, conferred on a lawyer by their peers. The Best Lawyers list is compiled through conducting a transparent, peer review survey in which tens of thousands of leading lawyers confidentially evaluate their professional peers. This year, more than 13.7 million votes were analyzed, which resulted in roughly 25,000 leading lawyers being included in the new edition and represent the top 5% of legal talent throughout the United States.  

The Best Lawyers in America ®

“Lawyer of the Year”

Additionally, two Firm partners were recognized as “Lawyer of the Year” in their respective categories. This recognition is awarded to individual lawyers with the highest overall peer-feedback for a specific practice area and geographic region. Only one lawyer is recognized as the “Lawyer of the Year” for each specialty and location.

Colorado’s Air Quality Control Commission Unanimously Adopts Rule Requiring Direct Measurement of Methane Emissions from Oil and Gas Operators

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On July 19, the Colorado Air Quality Control Commission unanimously adopted a nation-leading rule that, for the first time, requires the direct measurement of oil and gas methane emissions to verify regulatory compliance.  Methane is a potent greenhouse gas (GHG), with a warming potential 80 times that of carbon dioxide over the short term. Historically, oil and gas operators reported emissions based on calculations, not actual measurements.  This new rule requires the direct measurement of methane that will provide a more accurate and complete understanding of methane emissions on an operator-by-operator basis.  Once implemented, the rule will enable the agency and the public to understand whether oil and gas operators are complying with the Colorado intensity standard (which is a measure of emissions per unit of production) and also reveal more opportunities for reducing these harmful emissions.  This program will also enable the State to track progress toward achieving the oil and gas sector GHG statutory reduction targets of 36% reduction below 2005 levels by 2025 and 60% by 2030. Requiring direct measurement of methane pollution is the next frontier in oil and gas regulation and represents a next generation regulation for the oil and gas industry, based on the best available science and grounded in real and meaningful emission reductions.

Kaplan Kirsch & Rockwell partner Tom Bloomfield said that “We anticipate that this rule will serve as a model as other states and jurisdictions seek to reduce methane pollution from oil and gas sites. Today’s unprecedented rule builds upon our previous oil and gas climate work and demonstrates Colorado’s continued leadership on these issues.” 

Kaplan Kirsch & Rockwell attorneys, Tom Bloomfield, Sarah Judkins, Tim Roth, and Sarah Keane, represented Environmental Defense Fund (EDF) and Colorado Communities for Climate Action (CC4CA) in this rulemaking.  Environmental Defense Fund is a national environmental non-governmental organization, which, nationwide and in Colorado, has focused on, among other things, the environmental and health impacts of oil and gas production and methods to reduce GHG emissions from the oil and gas industry.  Colorado Communities for Climate Action is a coalition of 42 local governments across Colorado advocating for stronger state and federal climate policy.  KKR attorneys represented these clients in negotiating this rule with the State and oil and gas operators, and in the rulemaking process before the Commission. 

Nini Gu from Environmental Defense Fund praised the Firm’s efforts: “Kaplan Kirsch & Rockwell was a tremendous asset on the verification rulemaking.  They worked incredibly hard to ensure Colorado operators verify methane emissions in a manner that is robust and scientifically valid.  Their dedication, knowledge of these issues, and strategic engagement throughout these negotiations and rulemaking were remarkable. This is an important victory for Coloradans and the climate, and I can’t imagine a better team to work with.”

Jacob Smith, Executive Director of Colorado Communities for Climate Action, also praised the Commission’s decision and KKR’s role in negotiating the rule proposal, stating: “Local governments appreciate the iterative stakeholder process that led to a consensus proposal and today’s unanimous vote. These updated regulations on measuring GHG pollution from oil and gas operations stand out as an example of effective consensus building between industry, local government, the conservation community, and the Air Pollution Control Division, and the result should be meaningful pollution reductions.”

Read More:

Colorado Adopts First-of-its-kind Measures to Verify Greenhouse Gas Emissions from Certain Oil and Gas Sites

Colorado Adopts Groundbreaking Methane Measurement Rule

Pala Band of Mission Indians Enters First-of-its-Kind Mutual Aid Agreement with State of California

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PALA, CA – Today, the Pala Band of Mission Indians and the California Governor’s Office of Emergency Services (CalOES) entered into a historic agreement for the California Fire and Rescue Mutual Aid System. Pala is the first Tribal government to contract with CalOES and to be formally recognized as a partner in the State’s overall emergency response infrastructure.

As part of this new mutual aid agreement, Cal OES assigned a Type III fire engine to the Pala Fire Department, increasing capabilities to respond to local and statewide incidents, like wildfires. The department’s current fleet includes two Type I Structure Engines, and two additional Type III Brush Engines, among other vehicles.

“By being the very first Tribe to enter into a mutual aid agreement with the state, we are setting a new standard for the vital government-to-government partnerships that ensure the safety of our communities,” said Robert Smith, Chairman of the Pala Band of Mission Indians. “This is a monumental achievement for our Fire Department, our Tribe and the entire community and we hope it leads the way for Tribes across the state to gain recognition for the safety and response services they provide.”

The agreement stems from the enactment of SB 816, which culminated from decades of work by Tribal Fire Agencies to become officially recognized as true partners in providing vital emergency response services to the citizens of California.

“Wildfires in California have unfortunately grown more frequent and destructive, requiring the assistance of every available resource,” said Sen. Bill Dodd, D-Napa, the author of Senate Bill 816. “That’s why I wrote SB 816, which ensures tribal fire agencies can continue to play a key role in fighting wildfires throughout the state. This agreement with the Pala Band of Mission Indians marks an important milestone in bolstering California’s emergency response infrastructure.”

The Pala Fire Department has been providing the highest level of service and industry-standard in San Diego to the community of Pala and surrounding areas since 1978. The department has grown and expanded over the years to meet the needs of the community.

“We are committed to ensuring the safety of our community and the mutual aid agreement with the state will allow us to expand our mission even further,” said Fire Chief Ravago, Vice Chairman of the Pala Band of Mission Indians. “As wildfire risks increase, we remain vigilant and ready to serve our community and beyond.”

“I congratulate the Pala Band of Mission Indians in becoming the first tribe to sign on as a partner in the state’s Fire and Rescue Mutual Aid System. Pala has led the way, and now all Californians will be safer as CalOES increases its capabilities and resources through partnerships with California tribal governments.” – Assemblymember James C. Ramos (D-San Bernardino)

“Today is an historic step forward in our state’s efforts to provide emergency response services and to protect Californians. This collaboration between the Pala Band of Mission Indian Leaders, CalOES and state and local agencies will go a long way to improve and strengthen the California Fire and Rescue Mutual Aid System. I commend the Pala Band of Mission Indians and the Governor’s Office of Emergency Services on this landmark partnership.”  – Senate President pro Tempore Toni G. Atkins (D-San Diego)

“Congratulations to the Pala Band of Mission Indians! Today is a celebration that recognizes a two-decade long effort that the Pala Tribe and other Tribal Fire agencies have pursued to provide much needed emergency response services to Californians. In high fire hazard risk areas such as our back country here in San Diego County, mutual aid agreements like those being celebrated today will save lives.” – Assemblywoman Marie Waldron (R-Valley Center)

For more information about the Pala Tribe, visit http://www.palatribe.com/.

Video/Photos Available: 

Pala Fire Department Training on Cal OES Engine: here.

Type III Fire Engine Video: Cal OES Fire and Rescue Fleet – Type III Fire Engine 

Link to Cal OES Fire and Rescue Branch Fleet photos here. 

Original Press Release Posted by the Pala Band of Mission Indians

The Pala Band of Mission Indians is a federally recognized tribe whose reservation is located along the Palomar Mountain range approximately 30 miles northeast of San Diego. The majority of the over 900 tribal members live on the 12,000-acre reservation, established for Cupeño and Luiseño Indians, who consider themselves to be one proud people – Pala.

Proposed Rule Offers Clarifications and Updates to Program for Tribal Governments to Assume Wetland Permitting Authority Under Clean Water Act Section 404

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On July 19, 2023, the United States Environmental Protection Agency (EPA) announced a Proposed Rule updating its regulations governing the state and tribal assumption of permitting authority under Section 404(g) of the Clean Water Act.

Tribal governments may be particularly interested in provisions of the Proposed Rule clarifying requirements for seeking wetlands program authority.  In addition to requiring details about the structure and operation of the proposed tribal program, the Proposed Rule would require tribes to seek a jurisdictional determination to identify the waters over which tribal authority may be established.  A description of proposed approaches to comply with compensatory mitigation criteria (including instruments like mitigation banks or in-lieu-fee programs) would also be required.   

The Proposed Rule also includes streamlining provisions for projects expected to exceed the five-year limit on Section 404 permits. Tribes with long-term projects would be able to include, with initial permit submissions, information demonstrating that new environmental analysis is not necessary for subsequent renewals (absent changed circumstances).

In addition, the Proposed Rule would give Tribes approved for “treatment as a state” (TAS) important tools to address upstream projects and permits with the potential to impact the integrity of tribal waters – including the ability to request special permit conditions and/or EPA review.

Matthew Adams and William Mumby would be pleased to answer any questions about the challenges and opportunities posed by the Proposed Rule.  EPA will accept comments supporting, opposing, or suggesting revisions through early-October. 

The Biggest Environmental Law Cases of 2023

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Law 360 has included Kaplan Kirsch and Rockwell’s win in Eagle County, Colorado v. U.S. Surface Transportation Board as one of the publication’s Biggest Environmental Law Cases of 2023.

The Firm successfully represented Eagle County, Colorado in challenging the federal Surface Transportation Board’s approval of an 88-mile rail line intended to transport billions of gallons of crude oil out of Utah’s Uinta Basin. The Board’s approval of the $1.5 billion dollar rail project would have allowed the addition of up to 18 miles of trains hauling oil each day on an existing line through the Rocky Mountains within feet of the Colorado River. 

In a definitive and detailed legal opinion, the D.C. Circuit Court of Appeals found that the Board failed to adequately consider the project’s “significant potential for environmental harm” in violation of the National Environmental Policy Act, Endangered Species Act, and Interstate Commerce Commission Termination Act.

Firm attorneys Nate Hunt, Bob Randall, and Christian Alexander litigated the case on behalf of Eagle County. 

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The Supreme Court Significantly Narrows Federal Authority to Regulate Wetlands Nationwide

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In its May 25, 2023, decision in Sackett v. EPA, the U.S. Supreme Court attempted to settle a question that has plagued property owners, developers, farmers, environmentalists, and many other stakeholders for decades: what is the scope of “waters of the United States” that the federal government may regulate pursuant to the Clean Water Act (“CWA”)?  The CWA forbids the unpermitted discharge of pollutants, including dredged and fill material, from point sources into “navigable waters,” which the CWA defines as “waters of the United States,” including “adjacent” wetlands.  The meaning and scope of the term “waters of the United States” has been debated and litigated in the courts for many years.  With Sackett, the Court has attempted to settle that question with respect to wetlands, holding that “waters of the United States” covers only adjacent wetlands that are “indistinguishable” from other CWA waters such as streams, rivers, and lakes because the wetlands have a “continuous surface connection.” 

This ruling significantly narrows the Army Corps of Engineers’ and the Environmental Protection Agency’s regulatory authority over wetlands and other similar water features by excluding from coverage wetlands and other features that lack a continuous surface connection to other jurisdictional waters, even if they are connected intermittently or below the surface.  While the Corps and EPA have regulated wetlands under varying jurisdictional tests over the past decades, regulation of “adjacent wetlands” has included not only wetlands with a surface connection to other CWA waters, but wetlands that are separated from covered waters by a manmade dike or barrier, natural river berm, beach dune, and “the like.”  Sackett restricts the agencies’ longstanding interpretation of “adjacent wetlands.”

Under the Sackett test, a significant portion of the nation’s wetlands that are hydrologically connected but lack a continuous surface connection to jurisdictional waters will lose federal protection.  Some estimate up to 100 million acres of wetlands would fall into this category.  That number includes a significant portion of wetlands in the arid West that are ephemeral or seasonal in nature and thus only sometimes exhibit a surface connection with other waters covered by the CWA.  

History of the Sackett Case

The Sacketts own a piece of land 300 feet from Priest Lake in Idaho, separated from the lake by a roadway and lakefront homes.  In 2007, they deposited gravel and sand into wetlands on their lot to build a home – a practice requiring a CWA Section 404 permit from the Corps if the wetlands are jurisdictional.  EPA issued a stop-work notice, asserting the Sacketts were filling jurisdictional wetlands without a permit.  

At that time, EPA interpreted “waters of the United States” to include wetlands “adjacent” to those waters and “adjacent,” under regulations dating back to the 1970s, had always been understood to include wetlands neighboring other CWA waters as well as those physically abutting other CWA waters.  Agency guidance issued in the wake of the 2006 Rapanos v. United States decision instructed regulators to assert jurisdiction over wetlands adjacent to non-navigable tributaries when those wetlands had a “significant nexus to a traditional navigable water,” with a “significant nexus” existing when “wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity” of traditionally navigable waters.  EPA determined the Sacketts’ wetlands were jurisdictional because they neighbored an unnamed tributary to Priest Lake located on the other side of the 30-foot road.  The Sacketts challenged this determination all the way to the Supreme Court, ultimately asking the Court to (1) reject as overly broad the “significant nexus” test articulated by Justice Kennedy in Rapanos and applied nationwide since, and (2) adopt the more limited “continuous surface connection” test articulated by Justice Scalia in Rapanos.

The Court unanimously rejects the long-applied “significant nexus” test.

All nine Justices agreed with the Sacketts that their wetlands are not jurisdictional and rejected Justice Kennedy’s “significant nexus” test, but the Court was divided on what standard should be applied to wetlands.  The five-justice majority opinion, authored by Justice Alito, adopted the “continuous surface connection” test to determine if a wetland is jurisdictional.  The Sacketts’ wetlands, the majority found, are distinguishable from the nearby “waters of the United States” (Priest Lake and the tributary across the road from the Sacketts) due to the barrier between them and are therefore outside of the CWA’s jurisdiction. 

The majority described several reasons for rejecting the “significant nexus” test and the agencies’ broader view of “adjacency,” finding the test overly vague for property owners to determine whether their land is covered by the CWA and an abuse of due process given the possibility of significant civil penalties and even criminal ones for violations.  The majority held that the CWA only regulates “adjacent wetlands” that are “indistinguishable from waters of the United States,” which occurs only when “wetlands have a continuous surface connection to bodies that are waters of the United States in their own right, so that there is no clear demarcation between waters and wetlands.”  According to the majority, the existing broader view of federal regulation of wetlands eviscerates the federal-state balance of the CWA, which identifies states as the “primary” regulators.  Justice Thomas, concurring in full with the majority, wrote separately to expand further on his view that the text and history of the CWA indicate it is meant to focus on navigable waters.  

The Court’s four remaining justices agreed with the majority’s ruling that the Sacketts’ wetlands are not covered by the CWA, as well as the rejection of the “significant nexus” test, but they did not agree with adopting the “continuous surface connection” test.  Justice Kagan’s concurrence emphasized that the CWA’s language is not vague, but intentionally broad, because in enacting the CWA, Congress was addressing a crisis of water pollution of epic proportions.  According to Kagan, the term “adjacent wetlands” properly includes other “neighboring” wetlands based on the plain meaning of that word and its use in the statute.  Kagan chided that the majority was again “impermissibly rewriting Congress’ plain instructions” when those directives go further than the Court prefers, as it had allegedly done recently in West Virginia v. EPA (2022), when the Court rejected a broad interpretation of the term “system of emission reduction” under the Clean Air Act to enable the agency to address climate emissions.

Justice Kavanaugh concurred only in the judgment and vigorously opposed the majority’s conflation of “adjacent” with the more restrictive term “adjoining,” which he saw as a critical mistake in conflict with longstanding agency practice.  Kavanaugh argued that the new Sackett standard would harm the country—warning that levees in the Mississippi delta will now disqualify adjacent wetlands from protection, and wetlands nearby but not abutting the Chesapeake Bay would be left unprotected.  He declared the new test “will leave long-regulated adjacent wetlands no longer covered by the [CWA], with significant repercussions for water quality and flood control throughout the United States.”

Interestingly, the Court’s test in Sackett relies on the distinction between a wetland’s hydrological connection with other CWA waters at the surface versus below the surface; however, it arrives close on the heels of another decision of the Court that explicitly acknowledged the interconnection of surface and groundwater.  In County of Maui v. Hawai’i Wildlife Fund (2021), the Court held the County of Maui was required to obtain a permit to discharge from its wastewater treatment facility into groundwater that then discharged to the ocean.  The Court reasoned that the CWA requires a permit if the addition of pollutants through groundwater is performed in a way that is the “functional equivalent” of a direct discharge from the point source into navigable waters.  That holding relied on the recognition that CWA waters and groundwater are interconnected, scientifically and ecologically, and in some cases, it is necessary to regulate one to prevent harm to the other.  Similarly, Justices Kavanaugh and Kagan both acknowledged the importance of adjacent wetlands in protecting water quality of other CWA waters such as rivers and lakes, even without a continuous surface connection.  In Sackett, the recognition of that interconnection between the nation’s waters was not addressed by the majority.

What effect will Sackett have on wetlands regulation and permitting under the Clean Water Act?

The Court in Sackett provided some clarity in defining the CWA jurisdiction, an issue that has eluded potential permit applicants for many years.  Notably, under the new standard, a wetland that has no surface connection to other CWA waters is non-jurisdictional and no Section 404 permit is required.  But the regulatory landscape remains far from certain.  In adopting the new Sackett standard, the Court recognized that “temporary interruptions in surface connection may sometimes occur because of phenomena like low tides or dry spells.”  Moreover, a “landowner cannot carve out wetlands from federal jurisdiction by illegally constructing a barrier on wetlands otherwise covered by the CWA.”  Such statements suggest the Sackett standard is hardly a bright line rule.  In acknowledging “temporary interruptions”—while not defining those terms—the Court left room for the Corps and EPA to attempt a broad approach in applying the “continuous surface connection” test.  Given the Court’s intentional restriction of the federal agencies’ regulatory authority under the CWA, the agencies will likely do everything possible to protect their jurisdictional reach over wetlands.

Precisely what happens in the near term remains to be seen.  Corps district offices have represented that they will suspend issuing approved jurisdictional determinations until the agency issues guidance on how the new Sackett standard will be implemented.  The Corps and EPA will likely issue guidance for the regulatory community until a new regulation incorporating the Sackett standards is issued; such guidance is likely to revert, for the time being, to the 1986 regulatory standard (i.e., the pre- “significant nexus” regime) as modified by the new test established in Sackett.  

While the impact of the Sackett decision will unfold over the coming months (and years with expected litigation involving the Corps and EPA’s response to the decision), the significance of the ruling—including its implications for the regulated industry and for the environment—is difficult to understate.  Here are a several critical implications and consequences of the new Sackett standard.

  • The Biden Administration’s proposed regulations must be overhauled.  In light of Sackett, the Corps and EPA will likely withdrawal the recent January 2023 rulemaking on “waters of the United States,” which the Biden Administration had hoped would be a “durable” rule, because it relied heavily on the “significant nexus” test.  In crafting a new or revised rule, the Corps and EPA will have to grapple with new complexities and questions raised by the new Sackett standard: for instance, what are the outer bounds of “continuous surface connection” and “adjacent,” and when and how will the agencies measure a surface connection, given that a wetland’s connectivity can fluctuate based on weather and seasons and, ultimately, from climate change. Further, despite the majority “acknowledg[ing] that temporary interruptions in surface connection may sometimes occur,” what determines whether an interruption is temporary and what does “sometimes” mean?  Does it vary according to the environment (arid vs. humid)?  Are changes due to climate change considered in determining what is normal and what is a “sometimes” event?  In addressing these questions, the agencies will have an opportunity to interpret the holding in the broadest way possible (for example, determining that “continuous” surface connection in the arid regions means only directly after rain events).  It is inevitable that the agencies’ interpretation and application of the Sackett standards—especially a broad one—will be subject to legal challenges.
  • Permitting under the CWA’s Section 404 will likely be less costly, less burdensome, and more certain in the long run for regulated parties facing potential impacts to wetlands.  The Sackett decision immediately carves out huge categories of waters from the CWA’s jurisdiction and, therefore, significantly reduces the burden of time and resources required by Section 404 permitting.  Before Sackett, permit applicants faced some uncertainty with respect to wetlands that may not have had a continuous surface connection to other CWA waters but were nonetheless potentially regulated under the significant nexus test.  The Sackett standard reduces that uncertainty and excludes millions of acres of wetlands from the Section 404 permit requirement, including the requirement that impacts to those once-jurisdictional wetlands are mitigated.
  • The fate of mitigation under Section 404 is uncertain.  Compensatory mitigation of wetlands impacts has been a critical component of Section 404 permitting, particularly since the 2008 Mitigation Rule issued by the Corps and EPA.  Mitigation is required to offset impacts to wetlands and, often, the mitigation required by the Corps is relied on by other federal and state agencies to address a project’s environmental impacts.  Sackett may reduce the amount of mitigation for projects with potential impacts to jurisdictional wetlands, or the Corps may attempt to maintain the current level of mitigation required by Section 404 permits by focusing on mitigating overall impacts to the aquatic ecosystem—including non-jurisdictional waters.  Further, Sackett may impact established mitigation banks, a profitable industry that has emerged over the years, as the demand for mitigation for wetlands will be reduced with the exclusion of millions of acres of wetlands no longer covered by the CWA.
  • NEPA’s reach may be reduced under Sackett.  Narrowing the scope of wetlands covered under the CWA may result in less environmental review under the National Environmental Policy Act for development and other projects that otherwise would require a Section 404 permit before Sackett.  Often a Section 404 permit for wetlands impacts is the federal action triggering environmental review under NEPA.  The exclusion of substantial wetlands from coverage under the CWA will invariably exclude some projects from NEPA review.
  • The exclusion of millions of acres of wetlands from federal protection may make it harder to properly manage water supplies and water resources, as well as conduct flood control efforts. As recognized in Justice Kagan’s and Justice Kavanaugh’s concurring opinions, wetlands play a critical role in protecting the quality of nearby waters—including filtering water and reducing the flow of surface runoff into other CWA waters, such as rivers.  They also are critical to flood control and buffering against coastal storms and sea level rise.  Under Sackett, large amounts of wetlands may now be developed without the costly permitting requirement and environmental review.  Thus, Sackett may elevate the risk and potential effects of development of wetlands as an important factor that must be considered by utilities, water suppliers, municipalities, and communities in managing watersheds, water pollution, water supplies, and flood control.
  • The burden of wetlands protection shifts to the states.  While there will be a push for Congress to revise the CWA to broaden CWA jurisdiction after Sackett, and once and for all define clearly what wetlands are federally regulated, any legislative fix is far from guaranteed.  In the meantime, the fate of wetlands protection will further shift to states that can enact their own dredge and fill permitting regimes to regulate areas no longer covered by the CWA.  When that happens, the Corps and EPA can regulate federal waters and wetlands in a state, and the state regulates additional state waters.  States can also “assume” the federal dredge and fill permitting program within their own state, so that they issue permits for both state and federal waters (with some limited exceptions).  ”Assumption” provides states with more complete control over dredge and fill permitting, though only three states have done so to date.  However, standing up new regulatory programs is not easy, politically, financially, or otherwise.  How many states may choose to act post-Sackett remains to be seen and any meaningful regulatory changes on the state level will require time.

What should regulated parties consider in navigating the regulatory uncertainty following Sackett?  

Until the Corps and EPA provide new guidance on implementation of the Sackett standard and, ultimately, a new regulation that incorporates the Court’s decision, regulated parties should consider the following:

  • Do not expect approved jurisdictional determinations issued by the Corps in the near term, which will likely delay the processing of certain Corps permits.  Direction from Corps headquarters is that all approved jurisdictional determinations are suspended indefinitely, and certain Corps District offices have issued formal public announcements that issuance of approved jurisdictional determinations is on hold until further notice.  See Chicago District, Army Corps of Engineers, https://www.lrc.usace.army.mil/Missions/Regulatory/Jurisdictional-Determinations/ (last visited June 7, 2023).
  • Anticipate potential impacts to planned or pending projects that currently rely on jurisdictional determinations issued before Sackett.  While federal agencies often grandfather pending projects from being subject to new regulations, it is uncertain how the Corps will treat existing approved jurisdictional determinations that conflict with the Sackett standard.  For the time being, permit applicants must wait and see.
  • According to the Corps, permit applicants can still rely on preliminary jurisdictional determinations, which are non-binding, advisory determinations by the Corps regarding the potential presence of CWA waters.  The value in preliminary jurisdictional determinations may be increased now because the Corps is not issuing any approved jurisdictional determinations, particularly for those projects that likely do not require a Section 404 permit and must move forward.  A preliminary jurisdictional determination can allow a party to move forward with a permit application with some added assurance of compliance with Sackett.  However, in computing impacts (and mitigation) for preliminary jurisdictional determinations, the Corps treats all aquatic resources that would be affected by a project as jurisdictional, so a permit applicant seeking a preliminary jurisdictional determination cannot rely on the Sackett standard to reduce the number of jurisdictional wetlands impacted by a project.
  • Proceed with caution.  If it is reasonable to conclude that a continuous surface connection clearly does not exist, property owners can likely proceed without any jurisdictional determination or Section 404 permit.  If there is any question as to whether a wetland is jurisdictional under a broad interpretation of the Sackett standard, a party should proceed with caution.  If an existing jurisdictional determination or permit is in place, the prudent course of action is to proceed pursuant to the jurisdictional determination until the agencies have provided guidance on the Sackett test. 
  • Monitor regulatory developments at the district level in addition to guidance and directives from Corps and EPA headquarters.  While the Corps’ district offices often provide guidance for regulatory activities within the district, that local or regional guidance may be particularly relevant in applying the Sackett test and, ultimately, determining what wetlands are covered by the CWA.  Corps guidance at the district level can account for the unique water resources and ecology within the district, which may be a critical factor in determining what wetlands have a “continuous surface connection” to CWA waters.

Kaplan Kirsch & Rockwell LLP advises public and private clients on a host of water quality, water permitting, and project development matters including Section 404 permitting and litigation.  We will continue to track and advise clients on the regulatory developments following the Sackett decision.  For more information about how the Supreme Court’s decision in Sackett v. EPA could impact you or your organization, please contact Nate Hunt, Sara Mogharabi, or Brandon Rattiner.

Chambers USA Ranks Kaplan Kirsch & Rockwell Among Nation’s Top Law Firms in 2023 Guide

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Kaplan Kirsch & Rockwell is pleased to announce that the firm and several of our attorneys have been recognized in the 2023 edition of Chambers USA.

The firm received rankings in the following practices:

  • USA – Nationwide
    • Projects: PPP (Band 4)
  • California
    • Native American Law (Band 1)
  • Colorado
    • Environment (Band 2)
    • Real Estate: Zoning/Land Use (Band 1)

The following attorneys are ranked in the 2023 Chambers USA guide:

Nationwide

California

Colorado 

A summary of Kaplan Kirsch & Rockwell’s rankings can be found here. 

Chambers and Partners is an international, independent, research-based guide derived from conducting thousands of in-depth interviews with leading innovators and experts across the globe.