Publication
EPA Proposes New WOTUS Definition, Narrowing Clean Water Act Jurisdiction
By Patrick J. Paul, Chris P. Colyer, and John Habib
On November 17, 2025, the United States Environmental Protection Agency (EPA) published a proposed rule that would significantly narrow its regulatory authority over Waters of the United States (WOTUS). Under the new proposed WOTUS rule, EPA would effectively have jurisdiction only over relatively permanent waters and a smaller subset of directly connected wetlands.
The WOTUS definition outlines the geographic reach of the U.S. Army Corps of Engineers’ and EPA’s authority under the 1972 Clean Water Act to regulate streams, wetlands, and other water bodies. As such, it has been reviewed in boardrooms, courtrooms, and government offices for over fifty years. Most recently, on May 25, 2023, the U.S. Supreme Court issued its opinion in Sackett v. EPA. In Sackett, the Supreme Court determined that WOTUS are only (1) relatively permanent bodies of water, such as oceans, lakes, rivers, and streams; or (2) adjacent wetlands indistinguishable from those waters because of a continuous surface connection.
EPA frames its proposed WOTUS rule as “fully implementing” Sackett v. EPA and narrowing federal reach. Most importantly, the proposal:
- Defines “relatively permanent waters” to include waters that are standing or continuously flowing year-round or at least during the wet season.
- Narrows the definition of “tributary” to only include relatively permanent waters.
- Codifies Sackett’s “continuous surface connection” language as it relates to wetlands by requiring the proposed WOTUS wetland to:
- Abut a jurisdictional water; and
- Have surface water at least during the wet season such that the wetland is effectively indistinguishable from the jurisdictional water.
If the rule is finalized as proposed, many seasonal streams, ephemeral channels, isolated wetlands, and interstate waters will be excluded from federal jurisdiction unless they meet the new “relatively permanent” and “continuous surface connection” tests. That likely means fewer Clean Water Act permits will be required for projects affecting those features. The proposed WOTUS rule will also require EPA to defer more frequently to states and tribes regarding decisions affecting waterways. EPA touts this as “cooperative federalism,” explaining that states and tribes will have more responsibility to decide whether and how to regulate waters no longer overseen by EPA.
Responses to the proposed WOTUS rule are mixed. Many in the regulated community — such as those involved in agriculture, development, and mining — are treating the proposed WOTUS rule as a win because they see it as more predictable and less burdensome. On the other hand, environmental groups argue that the proposed WOTUS rule weakens water quality protections beyond what Sackett requires, leaving wetlands and ephemeral streams unprotected and heightening risks to drinking water, habitat, and flood resilience.
Once the proposed WOTUS rule is published in the Federal Register, interested parties have 45 days to comment. EPA will consider these public comments before issuing a final rule.
Given the history of WOTUS, it is almost guaranteed the final rule will be challenged in court. EPA’s proposal signals another shift in the scope of federal Clean Water Act jurisdiction — and continued uncertainty for projects that interact with wetlands and streams. Project proponents should continue to consult early with counsel and technical experts to assess whether certain features qualify as WOTUS, what permits may still be required, and how best to navigate the shifting balance of federal, state, and tribal regulation.
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