By: John B. King

The Supreme Court’s ruling in Sackett v. EPA continues to dominate discussions regarding the scope of jurisdiction over adjacent wetlands.  Now, the Corps and EPA seek to codify that ruling into the regulatory definition of ‘waters of the United States.’

In Sackett, the Supreme Court adopted Justice Scalia’s opinion in its prior Rapanos decision.  It held that the Clean Water Act extends only to those wetlands that are as a practical matter indistinguishable from waters of the United States.  The Corps must establish first, that the adjacent body of water constitutes ‘waters of the United States’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters) and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins. Sackett v. EPA, 143 S.Ct. 1322, 1341 (20243).

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