Waters of the U.S.

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.


  1. 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.
  2. 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.
  3. Impact– any property that is subject to a 404 permit and any associated mitigation measures.

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