Clean Water Act Jurisdiction Before and After Sackett

This program, presented by David Fotouhi, will discuss the basic structure of the Clean Water Act and its jurisdictional provision, the history of agency interpretations of Clean Water Act jurisdiction and the term "Waters of the United States," and Supreme Court precedent addressing the scope of the Clean Act. With this background, the program will focus on the Supreme Court's recent decision in Sackett v. Environmental Protection Agency, 598 U.S. (2023), including the facts of the dispute and the court's opinions. The program will conclude with a discussion of EPA and the Army Corps of Engineers' implementation of the Sackett decision, an overview of pending litigation, and an analysis of the current and future scope of Clean Water Act jurisdiction. This program will benefit environmental practitioners seeking to understand the history and current scope of "Waters of the United States" as well as those interested in learning about potential future steps EPA and the Army Corps of Engineers may take to implement the Clean Water Act after Sackett.

Learning Objectives:

1. Review the statutory basis of Clean Water Act jurisdiction and assess the regulatory history of "Waters of the United States"

2. Identify historical Supreme Court opinions delineating Clean Water Act jurisdiction

3. Analyze the background and reasoning of the Supreme Court's recent decision in Sackett v. EPA

4. Assess the current state of Clean Water Act jurisdiction after Sackett and survey the current litigation landscape

5. Predict future steps EPA and the Corps of Engineers may take after Sackett