Keeping You Abreast of the Latest Waters of the U.S. (WOTUS) Ruling

What the August 2023 Rule Amendment Means for Future Solar Projects

Waters of the U.S. (WOTUS), including wetlands, are significant environmental considerations for new solar projects. The discussion on the final interpretation of the WOTUS rule continues, even after the U.S. Supreme Court’s May decision in Sackett v. Environmental Protection Agency (EPA).

Terracon’s WOTUS subcommittee, a team of environmental professionals from across the country, has continuously monitored the status of WOTUS rulings for nearly three years. Here’s a breakdown of the latest updates, and what they mean for renewable energy companies, utilities, and solar project developers/owners.

Latest WOTUS Rule Amendment Loosens Federal Wetland Regulations

Amendments to the WOTUS rule were announced on August 29, to be consistent with the Supreme Court’s May Sackett v. EPA decision. (more on that decision below). The most notable amendment states that adjacent waters must have a “continuous surface connection” to be considered federally jurisdictional. The amendment may result in more developable land without the need for federal permitting in situations where a continuous surface connection between resources is not present. Information around the most recent amendment continues to trickle out, and it’s important to note that nothing is finalized yet.

“Presently, approved jurisdictional waters are not being issued. They won’t start being issued again until the amendment is published in the federal register, which could happen in a matter of weeks,” said Andy Ruocco, principal and environmental department manager in Charleston, South Carolina, and WOTUS subcommittee lead. He also noted that the timeline is a best-case scenario. Potential court challenges in the coming weeks could delay the publication process.

Supreme Court Decision Sets Stage for WOTUS Future

The Sackett v. EPA decision, issued in May 2023, was a significant departure from the previous WOTUS definition that went into effect in March of 2023. The Supreme Court ruled that waters regulated by the Clean Water Act must have a “continuous surface connection” to lakes and rivers that affect interstate commerce. Furthermore, the significant nexus test and its associated requirements/parameters have been removed from the new Amendments to the “Revised Definition of ‘Waters of the United States” (Sackett decision).

Keeping You Informed of Federal and State Wetlands Regulations

Projects involving wetlands must almost always comply with federal and state requirements. In addition to the WOTUS subcommittee, Terracon has a network of environmental professionals in offices across the country who are familiar with local and state regulations and can be a trusted partner on the road to compliance.

“Our experts can provide regional perspective on how this rule change will impact clients in consideration of other related state and local rules and regulations pertaining to aquatic resources,” said Ruocco.

Sustainability and renewable energy are an important combination as we look to the future of power generation. Your local Terracon team can help keep your solar project compliant through ongoing regulation updates. Let’s take the next step together: contact Jeremy Hanzlik, P.E., national manager, environmental planning, at jeremy.hanzlik@terracon.com or (210) 714-2146 to learn more about how we can help.