Background:

The Clean Water Act prohibits negligent discharge of pollutants, including dredge and fill material, into “navigable waters,” defined in the Act as “waters of the United States.” The CWA authorizes draconian criminal and civil penalties for violations, including fines of many tens of thousands of dollars per day. While settled law establishes federal jurisdiction over physically navigable waters, uncertainty about the CWA’s implications for wetlands has persisted since its enactment. Sackett v. EPA, a May 2023 U.S. Supreme Court ruling, has major significance in the context of federal agencies and courts’ various attempts to expand and contract the scope of WOTUS.

In the 2006 split decision Rapanos v. United States, a plurality of the Supreme Court found WOTUS describes relatively permanent waters with a continuous surface connection to navigable waters, and Justice Anthony Kennedy found waters with a “significant nexus” to navigable waters also covered. Under Justice Kennedy’s Rapanos opinion, the EPA applied an essentially limitless complex of highly technical variables to demonstrate, often on the basis of subsurface conditions, a significant nexus between navigable waters and areas subject to construction and other private activity. As codified by the Biden administration’s January 2023 WOTUS rule, the significant nexus standard sustained federal jurisdiction over any land that functions to drain water at some point, subjecting virtually the entire United States to CWA enforcement.

Sackett disposed of the significant nexus standard, finding that WOTUS does not describe waters lacking relative permanence or waters without a continuous surface connection to navigable waters. The scope of WOTUS articulated in Sackett is consistent with the Trump administration’s 2020 Navigable Waters Protection Rule, which codified the Rapanos plurality opinion by removing ephemeral or isolated waters from federal jurisdiction. The second Trump administration is currently soliciting stakeholder recommendations for implementation of the Sackett ruling, specifically to inform development of new standards for relative permanence and surface continuity. Pending a new rule, CWA administration proceeds on a fragmented case-by-case basis under a patchwork of field memoranda reflecting the second Trump administration’s partial recission of guidance implementing the Biden administration’s unlawful post-Sackett September 2023 conforming rule, which court decisions either enjoin or preserve in many states.

Desired Outcome:

ABC is a member of the Waters Advocacy Coalition, which seeks to restrain burdensome and unlawful assertion of federal jurisdiction over private land via expansive interpretations of WOTUS. ABC welcomes Sackett’s provision for a clear jurisdictional test that permanently excludes from WOTUS areas susceptible to ephemeral inundation that are not obviously connected to a navigable waterway.

The significant nexus standard exposed small businesses engaging in virtually any land disturbance activity to the potential for crushing penalties, including criminal prosecution, chilling investment in housing, infrastructure and other critical projects. As outlined in the Waters Advocacy Coalition’s May 2025 comments to the EPA and USACE, ABC supports a comprehensive, specific description of covered wet areas that eliminates subjective and expansive terms to the maximum extent practicable and facilitates efficient jurisdictional determinations by reference to the original regulatory text, rather than informal subregulatory material.