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Waters of the United States Post-Sackett: Current Regulations, Pending Litigation, and the Path Ahead

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 Tuesday, May 14, 2024

Recorded event now available

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This CLE webinar will explore the scope of federal jurisdiction under the Clean Water with respect to “waters of the United States” (WOTUS) following the recent U.S. Supreme Court decision in Sackett v. EPA (2023) and subsequent litigation and rulemaking activity. The panel will discuss how counsel should proactively engage with clients to ensure they remain in compliance in an ever-evolving regulatory and enforcement landscape.


The Clean Water Act protects "navigable waters," which the Act defines as WOTUS. The Act prohibits discharges of pollutants, including fill material, to WOTUS without first obtaining a permit from either the U.S. Environmental Protection Agency (EPA) or Army Corps of Engineers (Corps).

Over the past half-century, EPA, the Corps, and the courts have offered a wide range of interpretations concerning the types of water bodies that qualify as "WOTUS" and are therefore subject to federal regulation under the Clean Water Act. In recent years under different administrations, rulemaking has vacillated between creating narrower WOTUS definitions to more expansive definitions having a whiplash effect on counsel and their clients.

In 2020, EPA and the Corps (under the prior administration) finalized the Navigable Waters Protection Rule (NWPR), which established a significantly narrower definition of WOTUS than under prior agency rules and guidance. In 2023, the agencies, under the purview of a new administration, issued a more expansive rule that took effect on March 20, 2023. However, on May 25, 2023, the U.S. Supreme Court in Sackett v. EPA discarded the "significant nexus" test when determining jurisdiction under the CWA and established a new standard. As a result, the agencies revised the rule once more, issuing a final rule that comports with Sackett on Aug. 29, 2023, without going through the notice and comment rulemaking process.

As a result, litigation continues to swirl through federal courts across the nation challenging the revised rule and the procedure by which it was revised.

Listen as our expert panel examines the status of the NWPR and notable current litigation. The panel will also offer best practices for compliance given the ever-evolving regulatory and enforcement landscape.



  1. Introduction: WOTUS regulatory history
  2. Sackett v. EPA overview
  3. Latest WOTUS rule
  4. Notable current litigation
  5. Looking ahead
  6. Best practices for compliance


The panel will review key issues such as:

  • What types of water bodies are subject to protection post-Sackett?
  • What effect has Sackett had on the regulatory definition of WOTUS? What may be expected for future rulemaking?
  • What is the current status of WOTUS litigation?
  • What industries are most impacted by these regulatory changes?
  • What are the potential opportunities and challenges ahead for counsel and their clients?


Macfarlan, Tad
Tad J. Macfarlan

K&L Gates

Mr. Macfarlan advises the firm’s energy, industrial, utility and commercial sector clients on compliance with...  |  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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