Sackett v. EPA: New Wetlands Test and Federal Jurisdiction Limits

The Supreme Court’s May 25, 2023 ruling in Sackett v. EPA sharply narrowed federal authority over wetlands under the Clean Water Act. All nine justices agreed the EPA had overreached against Idaho landowners Michael and Chantell Sackett, but a 5–4 majority went further and replaced the long-standing “significant nexus” test with a new rule: the federal government can regulate a wetland only if it has a continuous surface connection to a relatively permanent body of water that itself connects to traditional navigable waters.¹ In practical terms, a wetland now has to physically touch the water for the EPA to claim jurisdiction over it.

The New Test for Federal Wetland Jurisdiction

Justice Samuel Alito’s majority opinion, joined by Chief Justice Roberts and Justices Thomas, Gorsuch, and Barrett, set out a two-part standard. First, the nearby water has to be a “relatively permanent, standing or continuously flowing” body connected to traditional navigable waters. Second, the wetland must have a “continuous surface connection” to that water, so that it is “difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”¹

Both parts matter. A wetland that touches a ditch does not qualify unless that ditch is itself a relatively permanent, jurisdictional water. And a wetland near a covered river does not qualify if anything breaks the surface link between the two.

What the Court Replaced

For nearly two decades, federal agencies had used the “significant nexus” test drawn from Justice Kennedy’s concurrence in Rapanos v. United States (2006). Under that standard, a wetland fell within federal jurisdiction if it significantly affected the chemical, physical, or biological integrity of a traditional navigable waterway.² The connection could be ecological rather than visible. A wetland miles from a river could be regulated if it filtered pollutants or moderated flooding downstream.

The Court discarded that approach entirely. The majority read the Clean Water Act’s use of “waters” to mean geographic features people would ordinarily recognize as bodies of water, and read the word “adjacent” to require a direct, unbroken physical connection rather than proximity or ecological relationship. The majority also called the significant nexus test unconstitutionally vague, noting that by the EPA’s own admission “nearly all waters and wetlands are potentially susceptible to regulation under this test, putting a staggering array of landowners at risk of criminal prosecution for such mundane activities as moving dirt.”³ Given that Clean Water Act civil penalties can reach $68,445 per day of violation,⁴ the Court concluded landowners need a bright-line rule.

Wetlands and Waters That Fall Outside Federal Reach

Two categories of waters that were often regulated before 2023 sit outside federal jurisdiction under the new test.

Wetlands separated from a covered water by a physical barrier no longer qualify. In the Sacketts’ own case, a 30-foot road stood between their property and the nearest tributary, and that road broke the chain of jurisdiction. The same logic applies to levees, berms, dikes, and similar features, whether natural or man-made. A wetland behind such a barrier can still filter runoff and store floodwater, but it is no longer “adjacent” in the sense the Court adopted.

Streams and channels that carry water only intermittently also generally fall outside coverage. Because the majority defined “waters” as relatively permanent, standing, or continuously flowing features, a wash or ditch that runs only after rainstorms is not itself a jurisdictional water, and wetlands touching only such features gain no federal protection through them. The Court expressly rejected reading the statute to reach “virtually any parcel of land containing a channel or conduit through which rainwater or drainage may occasionally or intermittently flow.”¹

Where the Justices Disagreed

The judgment was unanimous, but four justices refused to sign on to the new test.

Justice Kavanaugh, joined by Justices Sotomayor, Kagan, and Jackson, wrote that the majority misread “adjacent.” Congress had chosen “adjacent” over “adjoining” when it wrote the Clean Water Act, and the two words historically carry different meanings: “adjacent” covers nearby features, while “adjoining” means physically touching. By requiring a continuous surface connection, Kavanaugh argued, the majority effectively collapsed “adjacent” into “adjoining” and narrowed the statute past what Congress wrote.¹ He warned that wetlands separated from covered waters by berms or levees still filter pollutants and store floodwater for downstream communities, and would now lose federal protection.

Justice Kagan filed a separate concurrence joined by Justices Sotomayor and Jackson, arguing that the majority had effectively rewritten environmental policy from the bench and that decisions about how broadly to protect wetlands belong to Congress.

How the EPA Rewrote Its Rules

The agencies moved quickly. On September 8, 2023, the EPA and Army Corps of Engineers published a conforming rule that removed the significant nexus standard from the regulatory text, deleted interstate wetlands as an independent basis for jurisdiction, and redefined “adjacent” to mean “having a continuous surface connection.”⁵ No water or wetland can be found jurisdictional based on the old significant nexus standard.

In November 2025, the agencies proposed a broader rule to fully implement Sackett.⁶ The proposal would define “relatively permanent” to mean flowing year-round or at least during the wet season, define “continuous surface connection” to require surface water touching a jurisdictional water at least during the wet season, and expressly exclude groundwater and ditches built entirely in dry land. As of early 2026, the proposal is still working through the public comment process.⁷

What Property Owners Should Do

If your land contains or borders a wetland, the ruling changes the analysis in two directions. Many wetlands that were federally regulated before May 2023 no longer are, particularly those separated from navigable waters by any physical barrier and those linked only through underground hydrology or intermittent surface flow. But federal jurisdiction still exists where a wetland has a genuine continuous surface connection to navigable waters, their tributaries, or other covered waters, and state law can reach further than federal law.

A few practical steps:

If you want a binding answer on whether your property is federally jurisdictional, request an Approved Jurisdictional Determination from your local Army Corps of Engineers district. An approved determination remains valid for five years.
Check your state’s wetland rules separately. Some states run their own permitting programs that are broader than federal law, while roughly half the states have no permit requirements for wetlands that lost federal coverage after Sackett. States also retain authority under Clean Water Act Section 401 to attach water quality conditions to any federal permit.⁸
If your project affects a wetland that remains federally jurisdictional, you will need a Section 404 permit from the Army Corps before placing fill material. The process requires showing that you have avoided wetland impacts where possible, minimized what you cannot avoid, and compensated for the rest. Minimal-impact projects may qualify for a general permit; larger impacts trigger an individual permit review.⁹

The ruling shifted the default. Federal reach now stops at the water’s edge in a much more literal sense than it did before, and the burden of protecting wetlands beyond that line has moved to state legislatures and, potentially, to Congress.

1
Supreme Court of the United States. Sackett v. EPA (Slip Opinion)
2
Environmental Protection Agency. Rapanos v. United States
3
Justia. Sackett v. Environmental Protection Agency, 598 U.S. ___ (2023)
4
eCFR. 40 CFR 19.4 – Statutory Civil Monetary Penalties, as Adjusted for Inflation
5
Federal Register. Revised Definition of “Waters of the United States”; Conforming
6
Federal Register. Updated Definition of “Waters of the United States”
7
US EPA. Waters of the United States
8
Federal Register. Clean Water Act Section 401 Water Quality Certification Improvement Rule
9
US EPA. Permit Program under CWA Section 404