About the Course
Introduction
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.
Description
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.
Presented By
Mr. Boden is an associate in the environment, land, and natural resources group in the Harrisburg office. He assists a broad range of clients on the environmental aspects of project development, transactions, and government enforcement matters, with a specific focus on renewable energy. Mr. Boden counsels clients on compliance under the full suite of environmental statutes, including the Clean Water Act (CWA); National Environmental Policy Act (NEPA); Endangered Species Act (ESA); the Comprehensive, Environmental Response, Compensation, and Liability Act (CERCLA); and state equivalents. He also monitors novel issues arising under environmental laws relating to solar, wind, hydrogen energy, and carbon capture permitting, regulation of emerging contaminants, and environmental justice considerations.
Mr. Petersen's environmental practice includes environmental compliance, enforcement and litigation, with an emphasis on water and natural resource issues under the National Environmental Policy Act, the Clean Water Act, the Endangered Species Act, the Marine Mammal Protection Act, the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act. He assists clients in complex permitting and regulatory issues related to energy development, commercial and residential projects, mining and infrastructure. He is experienced in environmental litigation at both trial and appellate levels and defends clients in enforcement actions in administrative and federal courts. In addition, Mr. Petersen also assists clients in responding to rulemaking efforts by federal agencies and in litigating agency actions under the Administrative Procedure Act. He is co-author of the ABA's Endangered Species Deskbook (2nd Edition 2010).
Mr. Schiff is a senior attorney in Pacific Legal Foundation’s Environment & Natural Resources practice. Over the years, he has represented hundreds of landowners and property rights advocates to defend their liberties against heavy-handed and unwarranted environmental and land-use regulation. Mr. Schiff's legal work focuses on the Clean Water Act, Endangered Species Act, and other federal environmental laws. He has litigated several high-profile cases, including Sackett v. EPA, which involved two trips to the Supreme Court, with the Court upholding the right of landowners to challenge Clean Water Act compliance orders issued by the EPA (2012) and limiting the Clean Water Act’s reach to relatively permanent waters and their shoreline wetlands (2023). Mr. Schiff has written academic articles on a variety of subjects, including the Endangered Species Act, the Clean Water Act, greenhouse gas torts, the duty to rescue, and international water law. He has appeared on a variety of television and radio programs and has been quoted in The New York Times, The Wall Street Journal, Harper’s magazine, and The Economist, among other publications.
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
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Date + Time
- event
Thursday, March 26, 2026
- schedule
1:00 PM ET/10:00 AM PT
I. Introduction
II. Supreme Court's decision in Sackett v. EPA
III. Post-Sackett regulatory framework
A. January 2023 rule
B. 2023 conforming amendments
C. Split implementation: amended 2023 rule in 24 states; pre-2015 regime in 26 states
IV. 2025 "continuous surface connection" guidance
V. 2025 proposed rule: updated WOTUS definition
A. Key proposed changes
B. Comparison to NWPR and earlier frameworks
VI. Current litigation landscape and expected developments
VII. Best practices for compliance across divergent jurisdictions
VIII. Practitioner takeaways
The panel will review these and other key issues:
- What types of waters and wetlands jurisdictionally remain under the amended 2023 rule vs. the pre-2015 regime applied in enjoined states
- How the 2023 conforming amendments and the 2025 "continuous surface connection" guidance reshape federal jurisdictional determinations and permitting risk
- What major changes are included in the 2025 proposed WOTUS rule
- The current status of WOTUS litigation
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