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July 13, 2023

Virginia DEQ Announces Measures to Reduce Post-Sackett Permitting Delays – Regulatory Uncertainty

Jul 13, 2023 | Latest Updates, Resource Hub, Uncategorized

Earlier this year, the U.S. Supreme Court’s landmark decision in Sackett v. Environmental Protection Agency marked yet another chapter in the longstanding dispute over the federal government’s authority to regulate wetlands, streams, and other waterbodies.

The case centered on the Clean Water Act, which regulates the discharge of pollutants from land development activities into “waters of the United States” (WOTUS).  The precise meaning of “waters of the U.S.” has been extensively debated, but federal agencies have historically taken an expansive and “open-ended” approach to the term.

In Sackett, all nine Supreme Court justices agreed that the EPA had overstepped its authority when it haulted the construction of a single-family home in 2006.  More notably, in a narrow 5-4 majority, the Court ruled that the Clean Water Act extends only apply to wetlands which have a “continuous surface connection” with covered waters under the Clean Water Act, which effectively reduces the number of wetland acres protected by the Act.

In response to the Sackett decision, the U.S. Army Corps of Engineers announced a nationwide freeze on issuing approved jurisdictional determinations (AJDs) as the agencies prepare a revised WOTUS rule, a process which could extend into 2024 and have a chilling effect on land acquisition, permitting, and residential construction.  In light of this decision and its effects on economic development in Virginia, the Virginia Department of Environmental Quality (DEQ) has moved quickly to ensure that projects in Virginia are able to proceed.

Virginia DEQ Responds to Post-Sackett Regulatory Uncertainty

The Virginia Department of Environmental Quality recently published a memorandum outlining its assessment of the Sackett ruling and the proactive steps it has taken to minimize permitting delays and regulatory uncertainty arising from recent announcements by the U.S. Army Corps of Engineers and EPA.

As detailed in the memorandum, the Department began making its own State Surface Water Determinations (SSWD’s) to restore certainty in the permitting process and allow projects to move forward in a timely manner, without the need to await a determination by the U.S. Army Corps of Engineers.

Regulatory certainty is essential for promoting economic growth, particularly for the housing industry in a state that has grappled with soaring housing costs. As such, the Home Builders Association of Virginia fully supports the approach outlined in the Department’s memorandum.