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

Permitting Strategies, Future Rulemaking, State Legislation

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Wednesday, September 20, 2023

Recorded event now available

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This CLE webinar will provide an overview of the Supreme Court's recent landmark decision in Sackett v. Environmental Protection Agency and discuss how the decision limits the Clean Water Act's (CWA) jurisdiction over wetlands. The panelists will also address the EPA’s newly revised WOTUS rule reflecting the Sackett holding and discuss noteworthy state legislation.


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.



  1. Overview of Sackett v. EPA
    1. Two-pronged rule
    2. Limits on CWA jurisdiction
  2. Business implications
  3. Environmental concerns
  4. EPA's revised WOTUS rule
  5. The role of the states
  6. Best practices and challenges for guiding clients


The panel will review these and other key issues:

  • What are the key takeaways of Sackett?
  • How can environmental counsel guide clients in navigating the practical and legal considerations resulting from Sackett?
  • What will be the effects of the EPA’s newly revised WOTUS rule?
  • What effect may Sackett have on state legislation?
  • What are the best practices and challenges for counsel when advising clients on their current and future transactions post-Sackett?


Rusk, James
James Rusk

Sheppard Mullin

Mr. Rusk specializes in project permitting, compliance and litigation involving endangered species, wetlands and water...  |  Read More

Smith, Freedom
Freedom S.N. Smith

Ice Miller

Ms. Smith concentrates her practice in the areas of environmental and toxic tort litigation, environmental...  |  Read More

Szalay, Endre
Endre M. Szalay

K&L Gates

Mr. Szalay is a partner in the Environment, Land, and Natural Resources group in the Seattle office. He assists a broad...  |  Read More

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