WOTUS – A Supreme Court Overhaul – What’s Next?-WOTUS A Supreme Court Overhaul

WOTUS A Supreme Court Overhaul – What’s Next Slides

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This presentation analyzes the impact of the Supreme Court's decision in Sackett v. EPA on the future of the Clean Water Act’s “waters of the United States” (WOTUS) definition and regulation, focusing on wetlands protection.<br /><br />The Clean Water Act requires permits for discharging dredged or fill material into "navigable waters," defined as "waters of the United States." For nearly 50 years, agencies and courts have struggled to clearly define WOTUS. The 2023 WOTUS Rule classified waters into five categories, including traditional navigable waters, impoundments, tributaries meeting permanence or significant nexus standards, various adjacent wetlands, and certain intrastate water bodies.<br /><br />Sackett v. EPA involved property owners who backfilled wetlands hydrologically connected underground to Priest Lake, a navigable water. The EPA argued a permit was required under the significant nexus test—widely used to establish jurisdiction based on effects on downstream waters. However, the Supreme Court rejected this test as inconsistent with the Clean Water Act, ruling that wetlands must have a continuous surface connection to relatively permanent waters to qualify as WOTUS, thus narrowing federal jurisdiction.<br /><br />The Court distinguished jurisdictional wetlands as those "indistinguishably part" of a water body and emphasized that wetlands separated—even if nearby—are not WOTUS unless connected by continuous surface water, noting exceptions for man-made barriers constructed unlawfully.<br /><br />This ruling has created uncertainty about issues such as how to treat temporary interruptions in surface connection, the status of intermittent streams and tributaries, and whether hydrologically connected but not surface-connected waters fall under federal protection.<br /><br />In response, the Corps of Engineers is cautiously resuming jurisdictional determinations, and the EPA aims to revise the WOTUS rule by September 2023 using its "good cause" authority to align regulations with Sackett. Courts and states are responding variably, with some states restricting and others expanding wetlands protections, potentially complicating interstate water management.<br /><br />Overall, Sackett v. EPA represents a significant narrowing of federal wetlands jurisdiction under the Clean Water Act, with ongoing legal, regulatory, and state-level developments shaping the future landscape of water protection in the U.S.

Keywords

Sackett v. EPA

Clean Water Act

waters of the United States

WOTUS definition

wetlands protection

significant nexus test

Supreme Court ruling

federal jurisdiction narrowing

EPA WOTUS rule revision

interstate water management