SCOTUS Limits WOTUS: Jurisdictional Waters and Wetlands Under the Clean Water Act Must be Relatively Permanent, Standing, or Continuously Flowing Bodies of Water

June 2023

Environmental, Energy & Climate Change Law and Regulation Reporter, Volume 3, Number 9

On May 25, 2023, the U.S. Supreme Court released its highly anticipated opinion in Sackett v Environmental Protection Agency (Sackett), delineating the appropriate standard to determine waters of the United States (WOTUS) under the federal Clean Water Act (CWA). The Supreme Court significantly reduced the reach of WOTUS from earlier jurisprudence by holding that under the CWA, the word “waters” refers only to geographical features that are described in ordinary parlance as “streams, rivers, oceans, and lakes” and adjacent wetlands that are indistinguishable from those bodies of water due to a continuous surface connection. The ruling is a critical blow to the “significant nexus” standard originally penned by Justice Kennedy in Rapanos v United States, 547 U.S. 715 (2006) and recently memorialized by the Biden Administration’s Revised Definition of WOTUS and required in-depth, arduous, and often expensive consultant and legal analysis for applicability.

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