How Sackett changed Section 404 wetland screening
Most environmental screens include a look at wetlands, because placing fill in certain wetlands requires a federal permit. In 2023 the Supreme Court decided Sackett v. EPA, and the decision narrowed which wetlands fall under that requirement. If you screen project areas for wetland impacts, the decision changed what a desktop review can tell you and sharpened the point where the desktop work has to stop.
This post explains the permit at stake, what the Court held, and how both change the way a screen reads the federal data.
The permit at stake
Section 404 of the Clean Water Act (CWA) requires a permit before anyone places dredged or fill material into waters of the United States, a category that includes certain wetlands. The U.S. Army Corps of Engineers (USACE) runs that permit program. The practical question on most projects is whether the wetlands on or near the site are waters of the United States, because that is what determines whether a Section 404 permit is in play.
The phrase "waters of the United States," often shortened to WOTUS, is the legal test for federal jurisdiction under the Clean Water Act. Sackett is about how that test applies to wetlands.
What the Court held
The Court held that a wetland is federally jurisdictional only when it has a continuous surface connection to a relatively permanent body of water that is itself a water of the United States, so that the wetland is practically indistinguishable from that water. The Court set aside the older "significant nexus" test, which could reach wetlands connected to navigable waters through ecological or subsurface links rather than a visible surface connection.
In practical terms, the analysis now turns on a physical question. Is there a continuous surface connection at the ground between the wetland and a relatively permanent water, or is the wetland separated from that water by uplands, a berm, or a road?
What it changes for a screen
A desktop screen assembles the federal data that frames that question, and two datasets carry most of the weight.
The National Wetlands Inventory (NWI), published by the U.S. Fish and Wildlife Service, maps potential wetlands and classifies them. After Sackett, an NWI polygon inside the project area is still a clear reason to look closely, but it is a weaker proxy for federal jurisdiction than it was before. A mapped wetland that sits behind upland, with no surface connection to a nearby stream, may fall outside federal jurisdiction.
The National Hydrography Dataset (NHD), published by the U.S. Geological Survey, maps streams and waterbodies and records whether a feature is perennial, intermittent, or ephemeral. That flow-permanence attribute now matters more, because the jurisdictional anchor has to be a relatively permanent water. A wetland adjacent to a mapped perennial stream presents a different screening posture than a wetland near a feature mapped as ephemeral.
Where the screen stops
This part did not change. Mapped data points to the question; it does not answer it. A screen should lay the finding out in plain steps.
The project area contains the NWI wetlands and NHD features that intersect the project boundary. Placing dredged or fill material in a jurisdictional wetland would require a Section 404 permit under 33 U.S.C. 1344 and the implementing regulations at 33 C.F.R. Part 323. The screen cannot establish jurisdiction on its own, because under Sackett jurisdiction depends on a continuous surface connection to a relatively permanent water, and NWI and NHD mapping cannot confirm that connection on the ground. The next step is to commission a wetland delineation and request a jurisdictional determination from the local USACE district, because only a field delineation and a Corps determination can resolve whether a given feature is in fact a water of the United States.
The takeaway
Sackett did not remove wetlands from a screen. It changed what their presence implies. A current screen surfaces the same NWI and NHD layers, reads them against the continuous-surface-connection standard, and routes the project to a delineation and a Corps determination rather than treating a mapped polygon as a conclusion. The data raises the question. A qualified delineator and the Corps answer it.