Wednesday June 25, 2025
Allen Matkins —
California’s regulatory authority over “waters of the state” continues to grow even as the federal definition of “Waters of the United States” (WOTUS) narrows under shifting legal and regulatory frameworks. In Sackett v. EPA (598 U.S. 651 (2023)), the U.S. Supreme Court significantly restricted the scope of federal authority over waters and wetlands under the Clean Water Act (CWA), rejecting the “significant nexus” test from Rapanos v. United States (547 U.S. 715 (2006)). The Court held that only “relatively permanent, standing or continuously flowing” waters with a “continuous surface connection” to navigable, interstate waters qualify as federally jurisdictional WOTUS.
While the full impact of Sackett remains in flux, it is clear that many aquatic features previously protected under federal law are no longer considered jurisdictional WOTUS. This includes non-wetland features such as isolated waters and ephemeral streams, as well as wetlands that do not physically adjoin a jurisdictional waterbody.
In California, the practical result of Sackett is that the state is now poised to take on an expanded role in wetlands protection. Although California has not yet adopted comprehensive regulatory reforms to address the jurisdictional gap left by Sackett, recently proposed Senate Bill 601 (SB 601) signals the state’s intention to assert regulatory authority over formerly federally protected waters. This shift could have significant implications for developers, local governments, and permitting agencies.