On May 25, 2023, the Supreme Court narrowed its scope to determine “Waters of the US” subject to the Clean Water Act (CWA). Please read below for a brief summary of the ruling and the follow up action items.
- Prior- In Sackett v EPA, the Supreme Court did away with the “significant nexus” test, finding its “lengthy list of hydrological and ecological factors” too open-ended and resulting in “nearly all waters and wetlands being potentially susceptible to regulation.
- New- Instead, the Supreme Court introduced a new “continuous surface connection” test holding the CWA extends only to streams, oceans, rivers, lakes, and those wetlands that are “indistinguishable” from those larger bodies of water by having a “continuous surface connection.” Essentially, where the CWA previously included adjacent wetlands, this new, narrower interpretation only covers adjoining wetlands.
- Impact– any property that is subject to a 404 permit and any associated mitigation measures.
