To be “Waters of the United States” or not to be, that is the question

The question of what qualifies as “Waters of the United States” has been significantly reshaped by the U.S. Supreme Court’s decision in Sackett v. EPA (2023). In this landmark ruling, the Court narrowed federal Clean Water Act jurisdiction by holding that only wetlands and waterways with a continuous surface connection to traditionally navigable waters fall under federal protection. This effectively excluded many seasonal streams, isolated wetlands, and intermittent channels that previously qualified under broader interpretations. The Sackett decision now requires a more stringent, physical, and direct hydrologic connection—fundamentally changing how agencies, developers, and environmental professionals determine whether a feature is federally regulated.

In response, the Federal Goverment published a final rule effective on 09/08/2023 to bring the federal regulations within the guidance of the Court. Despite the Federal Government’s best efforts, the first attempt for revise the existing regulations fell short of fully complying with the Court’s ruling. The Federal Government published a subsequent proposed rule on 11/20/2025 to provide further guidance on the topic. The fate of the proposed regulation remains uncertain as of this writing.