In the decision Sackett v. EPA, the U.S. Supreme Court provided a clear statement regarding what wetlands are subject to regulation under the Clean Water Act, holding that the Clean Water Act “extends to only those wetlands that are as a practical matter indistinguishable from [other jurisdictional] waters of the United States.” The Court further stated that for the federal government to assert jurisdiction over a wetland, it must show ”that the wetland has a continuous surface connection with that water [i.e., an otherwise jurisdictional water], making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins."

Guidance from the EPA and Corps in November 2023, however, focuses solely on the “continuous surface connection” language of Sackett without any mention that the wetland must be indistinguishable from a water that is subject to the Clean Water Act. The guidance broadly states that a continuous surface connection may be created by “a discrete feature like a non-jurisdictional ditch, swale, pipe, or culvert” and that such connection results in the wetland becoming subject to the Clean Water Act. This guidance, however, is at odds with the Supreme Court's clear holding and results in EPA and the Corps expanding the jurisdiction of the Clean Water Act beyond what was authorized by the Court.

At least one court of appeal has rejected this approach. See Lewis v. United States (5th Cir., Opinion Dec. 18, 2023). EPA and the Corps, however, continue to assert jurisdiction over wetlands that are merely connected to other water bodies through ditches, pipes, and culverts. The regulated community must understand the U.S. Supreme Court's limitation on the jurisdictional reach of the Clean Water Act over wetlands and how federal guidance currently expands jurisdiction beyond that authorized by the Court. Otherwise, a developer, utility, or infrastructure contractor may find themselves in a costly and time-consuming permit process for impacts to wetlands that, under the Supreme Court's clear language, should not be subject to the Clean Water Act.

The regulated community must understand the U.S. Supreme Court's limitation on the jurisdictional reach of the Clean Water Act over wetlands and how federal guidance currently expands jurisdiction beyond that authorized by the Court.

https://www.epa.gov/system/files/documents/2023-11/wotus-overview_tribes-and-states_11-15-23_508.pdf