Supreme Court Makes New Decision Limiting the Inclusion of Wetlands in WOTUS

On May 25, the Supreme Court made a new Waters of the United States (WOTUS) decision in a Sackett v. EPA ruling that limits the inclusion of non-adjacent wetlands. The decision reverts back to the WOTUS ruling in Rapanos v. United States, where wetlands are only included if they have “a continuous surface connection” without regard for ecological importance. Based on this ruling, Clean Water Act (CWA) Section 404 permits will no longer be required for development projects in non-adjacent wetlands, though states may set stricter standards. CWA Section 404 regulates the discharge of dredged or fill material into WOTUS and is typically administered by the U.S. Army Corps of Engineers with EPA oversight.

This is the fourth Supreme Court ruling on WOTUS. This ruling effectively negates the Biden Administration’s December 2022 WOTUS rule to include impoundments or jurisdictional tributaries when the wetlands meet the significant nexus standard. For more information, view the Supreme Court ruling here.