This CLE webinar will explore the scope of federal jurisdiction under the Clean Water Act (CWA) with respect to "waters of the United States" (WOTUS) following the Supreme Court's decision in Sackett v. EPA (2023), the agencies' post-Sackett amendments, continuous surface connection guidance issued in 2025, and the recently proposed rule that would further narrow the WOTUS definition.
The panel will discuss the current split regulatory regime, ongoing litigation, and shifting federal policy in an evolving permitting and enforcement landscape.
The CWA prohibits pollutant discharge into WOTUS without a permit from the U.S. Environmental Protection Agency or the U.S. Army Corps of Engineers. Over the past five decades, agencies and courts have issued varying interpretations of what constitutes WOTUS, producing substantial regulatory uncertainty. The definition has shifted from restrictive approaches, such as the 2020 Navigable Waters Protection Rule (vacated in 2021), to broader interpretations, and back to a recent narrowed standard shaped by the Sackett decision.
In 2023, EPA and the Corps issued the "January 2023 Rule," later amended through an August 2023 conforming rule to align with Sackett by removing the "significant nexus" standard and revising adjacency provisions. Following multistate challenges, the amended 2023 rule is enjoined in 26 states, where the agencies now apply the pre-2015 regulatory regime as limited by Sackett. The amended 2023 rule remains in effect in 24 states, the District of Columbia, and the territories, creating a jurisdiction patchwork.
In March 2025, the agencies issued joint "continuous surface connection" guidance detailing how regulatory staff must evaluate adjacency, hydrologic connection, and wetland jurisdiction under Sackett. In November 2025 the agencies released an Updated Definition of WOTUS proposed rule, which would further narrow federal jurisdiction, refine exclusions, and restructure how "relatively permanent" waters are assessed for CWA coverage.
Litigation continues to challenge both the 2023 amended rule and its implementation. Additional litigation is expected following the 2025 proposal, ensuring that WOTUS will remain a critical concern for environmental law practitioners.
Listen as our panel analyzes the post-Sackett regulatory landscape, the 2025 guidance and proposal, the split implementation across states, and notable ongoing litigation. The panel will also offer best practices for advising clients operating under divergent regulatory regimes and evolving federal oversight.
