Sackett v. EPA: Impact on Clean Water Act Jurisdiction Over Wetlands

Description

In Sackett v. Environmental Protection Agency, the U.S. Supreme Court adopted a more stringent test for determining whether wetlands are protected under the CWA as "waters of the United States" (WOTUS), discarding the "significant nexus" test and severely curtailing the scope of the CWA's jurisdiction.

The two-pronged test propounded by the Court is: (1) whether the body of water adjacent to the wetland constitutes WOTUS; and (2) whether the wetland has a continuous surface connection with the adjacent water, making it difficult to determine where the water ends and the wetland begins.

The Court's ruling has significant business implications--specifically pertaining to permitting strategies--and raises environmental concerns where millions of acres of wetlands may no longer have federal protection and may now be subject to state jurisdiction. Whether and how states will step up to fill in the jurisdictional gap left by Sackett should be watched and considered carefully.

Furthermore, in response to Sackett, the EPA has released a newly revised final WOTUS rule that removes the “significant nexus” standard and redefines what are protected waters.

Listen as our expert panel discusses the business and environmental implications of Sackett and the EPA’s new WOTUS rule. The panel will also provide guidance to counsel and offer best practices for understanding how Sackett may affect their clients' permitting strategies and other concerns.