Defining “waters of the United States” (waters of the U.S.) has been an ongoing, persistent and contentious task spanning over a half century, with various adopted interpretations by the regulating agencies (United States Environmental Protection Agency [USEPA] and United States Army Corps of Engineers [USACE]) (agencies) dominating enforcement under the Federal Clean Water Act (CWA).

On May 25, 2023, the United States Supreme Court issued a decision in the case of Sackett v. Environmental Protection Agency resulting in yet another Supreme Court decision influencing how federal waters are defined. The decision determined that “the CWA extends to only those ‘wetlands with a continuous surface connection to bodies that are “waters of the United States” in their own right,’ so that they are ‘indistinguishable’ from those waters.”

The primary significance of the Sackett decision for HELIX’s clients is that, for some project sites, some wetlands that were previously subject to federal jurisdiction under the CWA will no longer be covered by the CWA, eliminating the need for USACE permitting under Section 404 of the CWA. However, the narrowed definition of waters of the U.S. may present additional regulatory challenges for our clients.

While we await further agency guidance, HELIX’s regulatory specialists are available to assist with strategy development for your projects. Visit our Contact Us page for a listing of HELIX offices and contact information for staff near you.