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Supreme Court Curtails Federal Regulation of Wetlands

Jun 6, 2023

On May 25, 2023, the United States Supreme Court issued a decision in Sackett v. Environmental Protection Agency regarding the scope of regulated “Waters of the United States” covered by the Clean Water Act (“CWA” or “Act”), the primary federal water pollution law.  The case focused on the extent of wetlands that Congress meant to include as a regulated “Water of the United States.” The Court reversed the Ninth Circuit’s decision and confirmed the “continuous surface connection” rule outlined in the plurality opinion of Rapanos v. United States. Under this rule, the CWA only applies to wetlands that have a “continuous surface connection” with a neighboring body of water that is a channel for interstate commerce or otherwise a “Water of the United States”.

The Court found that “the party asserting jurisdiction over adjacent wetlands to establish…that the adjacent [body of water constitutes]. . . ‘water[s] of the United States,’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters).”  Stated simply, the CWA only extends to wetlands that blend, flow or connect to a neighboring water source that is a relatively permanent body of water, such as a channel for interstate commerce.

The decision, available here, will have a significant impact on the scope of Army Corps of Engineers and EPA jurisdiction going forward.  Many projects under development or being constructed that contain wetlands onsite may no longer be subject to federal jurisdiction, as only wetlands with a continuous surface connection to a relatively permanent Water of the United States are jurisdictional per Sackett.  Litigation regarding the recently adopted definition of Waters of the United States is ongoing, so further findings regarding the interplay of the recent rule and Sackett will likely be forthcoming.  However, the Sackett decision is the final word on the scope of wetlands covered by the Clean Waters Act.  Absent a Congressional amendment, the regulation of wetlands has been substantially cut back.

Couch White is available to discuss the implications of this decision on your project or potential project. Contact Alita Giuda for more information.