The United States Supreme Court has issued a ruling clarifying which wetlands can be regulated by the federal government under the Clean Water Act. In a 5-4 vote, SCOTUS ruled that wetlands can only be regulated under the Clean Water Act if they have a "continuous surface connection" to a larger, regulated body of water such as a river, lake, or ocean. This ruling clarifies and changes an almost two-decades-long opinion that permitted the regulation of wetlands with a "significant nexus" to the larger waterways. The new ruling will make it easier for landowners and project developers to fill in certain federally regulated wetlands without obtaining a permit.
SCOTUS acknowledged that some wetlands that generally have a surface connection to a larger, regulated body of water could sometimes be disrupted by drought or other factors. Therefore, federal agencies, such as the U.S. Environmental Protection Agency and the Army Corps of Engineers, will still need to perform a fact-specific inquiry in order to decide how to implement this opinion.
Many states have implemented regulations on a state level to protect waters that will no longer be covered under federal jurisdiction. Therefore, developers and landowners should continue to use professional sources to determine whether their land or property will be subject to federal and state regulations.
Connell Foley is available to assist developers and landowners with the application of these changes.
PartnerAs Chair of Connell Foley LLP's Environmental Law practice group, Agnes Antonian draws on her engineering background to address a broad range of complex environmental litigation and land use matters. Her environmental litigation ...
AssociateNikki Alieva is an associate practicing in Connell Foley LLP's Environmental Group with a focus on matters pertaining to Article 12 of the New York Navigation Law (Oil Spill Act) and New Jersey’s Spill Act. She also practices in ...