Sackett v. EPA: The Supreme Court Reshapes Clean Water Act Wetlands Law
The Supreme Court's decision in Sackett v. EPA, 598 U.S. 651 (2023), fundamentally reshaped federal Clean Water Act (CWA) Section 404 jurisdiction over wetlands. The Court held that federal CWA protections extend only to wetlands with a "continuous surface connection" to traditionally navigable waters — overruling the broader "significant nexus" test from Rapanos v. United States, 547 U.S. 715 (2006).
For Long Island developers, manufacturers, and industrial property owners, Sackett appeared to dramatically reduce federal permitting exposure. In New York, however, the decision's practical impact is far more complicated — because New York State's independent wetlands regulatory framework fills every gap that Sackett created at the federal level.
New York's Independent Wetlands Authority: ECL Articles 24 and 25
New York Environmental Conservation Law (ECL) Article 24 establishes a freshwater wetlands regulatory program that operates entirely independently of federal CWA jurisdiction. Under 6 NYCRR Part 663, NYSDEC's freshwater wetlands authority covers all wetlands of 12.4 acres or more, plus smaller wetlands designated as of "unusual local importance" — a designation applied aggressively on Long Island given the region's hydrological connection to the Nassau-Suffolk sole-source aquifer.
Critically, ECL Article 24 does not incorporate Sackett's "continuous surface connection" standard. A wetland that no longer requires a federal Section 404 permit may still require a full NYSDEC freshwater wetlands permit — and compliance with its mandatory 100-foot adjacent area buffer — before any regulated activity proceeds.
For Long Island coastal properties, ECL Article 25 adds an entirely separate tidal wetlands protection layer under 6 NYCRR Part 661, covering salt marshes, intertidal areas, and coastal fresh wetlands throughout Nassau and Suffolk Counties. Sackett has zero effect on Article 25 jurisdiction.
Why Long Island Property Owners Cannot Rely on Sackett
The post-Sackett dual-regulatory landscape creates serious risk for developers and industrial companies who assume a favorable federal jurisdictional determination eliminates all permitting obligations. A Phase I Environmental Site Assessment showing no federal CWA Section 404 jurisdiction after Sackett may provide false assurance if NYSDEC freshwater or tidal wetlands jurisdiction applies independently — as it frequently does on Long Island.
Long Island properties commonly trigger ECL Article 24 or Article 25 jurisdiction through isolated wet depressions, interdunal swales, stormwater retention features, and coastal marsh areas — none of which require a surface connection to a navigable water under state law. Failure to obtain required NYSDEC permits before commencing regulated activities carries severe consequences under ECL Article 71, including mandatory restoration orders, substantial civil penalties, and potential criminal liability.
Key Takeaways for New York Developers and Property Owners
Sackett v. EPA reduced federal wetlands protections significantly — but it did not reduce New York's independent state protections by a single acre. Environmental due diligence on New York properties must comprehensively address both the narrowed federal CWA jurisdiction and the independent, often-broader protections of ECL Articles 24 and 25. Long Island project planning should include formal wetlands delineation under both federal and state criteria, consultation with NYSDEC Region 1, and review of the 100-foot freshwater and 300-foot tidal wetlands adjacent area buffers before any development activity.
Rigano LLC advises Long Island and New York developers, manufacturers, and property owners on Clean Water Act compliance, NYSDEC wetlands permitting, and environmental due diligence. Contact our Long Island environmental law office to navigate both federal and state wetlands requirements after Sackett.