The United States Supreme Court is currently considering whether to take up a case from the Second Circuit Court of Appeals concerning the definition of “waters of the United States” and the scope of wetlands jurisdiction under the Clean Water Act (“CWA”). The case, Andrews v. United States, No. 25-668 (2026), focuses on a dispute between a landowner and the Environmental Protection Agency (“EPA”) over an alleged CWA violation to occurred when the landowner filled in wetlands located on his property without a CWA permit. Directly before the Court is the question of whether the Second Circuit incorrectly interpreted the definition of “waters of the United States,” or WOTUS, following the Supreme Court’s 2023 decision in Sackett v. EPA, 598 U.S. 651 (2023). It is currently unclear whether the Court will agree to hear the case.
The Clean Water Act & WOTUS
The CWA is the primary federal law regulating water pollution in the United States. The purpose of the CWA is to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” which is largely accomplished through permitting programs administered by EPA and the United States Army Corps of Engineers (“the Corps”). 33 U.S.C. § 1251(a). The CWA prohibits the “discharge of any pollutant by any person” into a “navigable water” from a “point source” without a valid CWA permit. 33 U.S.C. § 1311(a). Additionally, the CWA requires a permit for “the discharge of dredged or fill material” into “navigable waters.” 33 U.S.C. § 1344(a).
The phrase “navigable waters” is a legal term that is typically used to refer to waters that can be used as a highway for interstate commerce. However, the CWA specifically defines “navigable waters” as “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1362. Understanding which waters qualify as “waters of the United States” is crucial to implementing the CWA because only those waters that are considered WOTUS are subject to the CWA’s permitting authority. Despite the importance of the term, Congress chose not to include a statutory definition of WOTUS in the text of the CWA. Instead, it has been the responsibility of EPA and the Corps to set a regulatory definition for the term “waters of the United States.” This has proven to be a challenging task, with the last decade in particular seeing several different rulemaking efforts to change the definition. A full timeline of the definition of WOTUS is available here.
Courts have also weighed in on determining the limits of WOTUS. Most recently, the Supreme Court issued the decision Sackett v. EPA in 2023 where the Court concluded that WOTUS extended to “those relatively permanent, standing or continuously flowing bodies of water […] described in ordinary parlance as streams, oceans, rivers, and lakes” and to wetlands that share a “continuous surface connection” with such waterbodies. A full breakdown of the Court’s ruling can be found here. After the Sackett v. EPA decision was issued, EPA updated the definition of WOTUS to reflect the Court’s conclusion. The agency then initiated another rulemaking effort in 2025 to bring the definition of WOTUS even more inline with the Supreme Court’s decision. That rulemaking is currently on-going. Until that effort is finalized, the definition of WOTUS includes the following:
- Traditional navigable waters which are currently used or may be used to facilitate interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide, the territorial seas, and all interstate waters (collectively, “traditional navigable waters”);
- Impoundments of waters otherwise defined as WOTUS;
- Tributaries of traditional navigable waters that are themselves relatively permanent, standing, or continuously flowing;
- Wetlands that are adjacent to traditional navigable waters, or relatively permeant, standing, or continuously flowing tributaries of such waters;
- Intrastate lakes and ponds that do not fall into any of the above categories, but that are relatively permanent, standing, or continuously flowing bodies of water that share a surface connection with a recognized WOTUS.
For the purposes of wetlands, the current definition defines “adjacent” as “having a continuous surface connection.”
EPA v. Andrews: Background & Lower Court Rulings
The CWA case currently on petition to the Supreme Court was initially filed in 2020 by EPA against the defendant for allegedly discharging dredged and fill material into wetlands located on his property without a valid CWA permit. The Corps, which is the agency responsible for issuing CWA permits for dredge and fill activity, initially visited the defendant’s property in 2011 and informed the defendant that he would need a permit for filling in the wetlands to avoid violating the CWA. According to the Corps, the wetlands feel under CWA jurisdiction because they were adjacent to another waterbody that is itself a WOTUS. The Corps referred the matter to EPA in 2017. Over the next two years, EPA sent the defendant several notification letters regarding possible CWA violations but did not receive a reply. Ultimately, EPA obtained an administrative warrant from a federal court in 2019 to inspect the defendant’s property. As a result of that inspection, EPA filed a lawsuit against the defendant in 2020, asking a federal court in Connecticut to require the defendant to halt his unauthorized dredge and fill activities and to pay civil penalties for his CWA violations.
The federal district court ruled in favor of EPA in June 2023, concluding that the defendant’s unpermitted deposition of dredge and fill material into the wetlands on his property was a violation of the CWA. The court based its ruling on a finding that the wetlands at issue were WOTUS and subject to CWA permitting jurisdiction. In its decision, the district court noted that following the Supreme Court’s decision in Sackett v. EPA, only those wetlands which share a “continuous surface connection” with a water already recognized as a WOTUS such that it is “difficult to determine where the ‘water’ ends and the ‘wetland’ begins” would also be considered a WOTUS. EPA claimed that the wetlands filled in by the defendant met that “continuous surface connection” standard because the wetland shared “continuous surface flow paths” with a relatively permanent water recognized as a WOTUS. Because the defendant did not dispute that the wetland was a WOTUS subject to CWA jurisdiction or that he had filled in those wetlands without a CWA permit, the district court ruled in favor of EPA and ordered the defendant to cease all unpermitted dredge and fill activities, restore the disturbed wetlands, and pay appropriate civil penalties.
Following the district court’s decision, the defendant appealed the ruling to the Second Circuit Court of Appeals. On appeal, the defendant argued that the case against him should have been dismissed because “there is no surface water on his property.” The Second Circuit disagreed, citing evidence showing that there was surface water on the property. Because the defendant failed to show that the lower court’s conclusion that he had discharged dredge and fill material into wetlands that fall under CWA jurisdiction without a valid CWA permit, the Second Circuit affirmed the district court’s decision. Following that ruling, the defendant petitioned the case to the Supreme Court.
Petition to Supreme Court
Currently, Andrews v. United States is on petition for certiorari to the Supreme Court. This means that the petitioner, Andrews, has asked the Supreme Court to hear the matter, but the Court has yet to decide whether it will accept the case for review. Both Andrews and EPA have submitted briefs to the Court making arguments as to why the Court should or should not agree to hear the dispute.
In his petition to the Supreme Court, Andrews asks the Court to consider whether the Second Circuit was correct to extend CWA jurisdiction over wetlands that are not “as a practical matter indistinguishable” from a water recognized as a WOTUS. According to the petitioner, the Second Circuit misapplied Sackett v. EPA in upholding the lower court’s conclusion that Andrews had violated the CWA. In Sackett v. EPA, the Supreme Court held that “the CWA extends to those wetlands that are ‘as a practical matter indistinguishable from waters of the United States[.]’” The Court explained that WOTUS included only those wetlands adjacent to a waterbody that itself constitutes a WOTUS and that adjacency is established when a wetland “has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.” Andrews argues that Sackett v. EPA established “indistinguishability” as the key requirement for extending CWA jurisdiction to wetlands and that the Second Circuit failed to consider whether the wetlands on his property were “indistinguishable” from the WOTUS to which they are adjacent. Instead, the Second Circuit upheld the lower court’s finding that the wetland shared “continuous surface connection” with the WOTUS because evidence showed that there were continuous surface flow paths linking the wetlands with the WOTUS. Andrews argues that this is not enough and that to satisfy Sackett v. EPA, the wetlands should be “indistinguishable” from the WOTUS. Andrews urges the Supreme Court to take up his case and clarify that the test for establishing a wetland as a WOTUS relies on “indistinguishability.”
In response, EPA argues that the case should not be taken up by the Supreme Court both because Andrews did not raise the argument of “indistinguishability” at either the district court or the Second Circuit Court of Appeals, and because EPA is currently carrying out a rulemaking to bring the definition of WOTUS inline with the Court’s decision in Sackett v. EPA. In general, courts will only hear arguments on appeal if the argument was raised before a lower court. Here, EPA argues that Andrews forfeit the right to raise the question of “indistinguishability” to the Supreme Court because he did not bring that matter to the Second Circuit. Instead, he argued that the Second Circuit should overturn the district court’s ruling because there was no surface water present on his property. Because Andrews did not argue that Sackett v. EPA established an “indistinguishability” requirement to the Second Circuit, EPA argues that the timing is not right for the Supreme Court to now hear that question. Additionally, EPA notes that it is currently in the process of rewriting the definition of WOTUS and that there is “no sound reason for this Court to intervene while the agencies’ rulemaking is ongoing.”
What Next?
As of the date of publication of this article, the Supreme Court has not yet determined whether it will hear Andrews v. United States. If the Court declines to hear the case, then Sackett v. EPA will remain the Supreme Court’s most recent ruling on the definition of WOTUS and jurisdiction under the CWA. However, should the Court agree to take up the case, the Court may choose to clarify the scope of its ruling in Sackett v. EPA which could ultimately impact EPA’s current effort to revise the regulatory definition of WOTUS. That effort is on-going, with a public comment period on the proposed definition having closed on January 5, 2026. If the Court agrees to take up Andrews v. United States, it is likely that a final decision would come after a final WOTUS rule has been issued unless EPA chose to stay the final rule in anticipation of a Supreme Court decision.
The National Agricultural Law Center will continue to watch Andrews v. United States and will provide an update on whether the Court takes the case.
To read the Second Circuit and district court’s opinions in Andrews v. United States, click here.
To read the Supreme Court’s decision in Sackett v. EPA, click here.
To read the most recent proposal to redefine WOTUS, click here.
For more information on the Clean Water Act from NALC, click here.