Posted by Michael J. Gross

On May 25, 2023, the U.S. Supreme Court decided that the Federal Clean Water Act only gives the federal government authority to regulate any relatively permanent body of water connected to traditional interstate navigable waters and only wetlands that have a continuous surface connection with that navigable water making it difficult to determine where the water ends, and the wetland begins. This modifies the standard currently used by the Army Corps of Engineers that requires only a nexus between the wetlands and navigable waters. This decision should not have a significant impact on regulation of freshwater wetlands in the State of New Jersey. The Army Corps of Engineers, under the Clean Water Act, only regulates freshwater wetlands that are located within 1000 feet of the mean high-water line. It does so as does the State of New Jersey, which has authority under its own Freshwater Wetlands Protection Act. The practical impact of this U.S. Supreme Court decision is that it narrows the circumstances in which applicants must obtain approvals from both the Army Corps of Engineers and the New Jersey Department of Environmental Protection.