The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) recently released a proposed update to the definition of “Waters of the United States” (WOTUS) on November 20, 2025. This update responds to the Supreme Court’s 2023 decision in “Sackett v. EPA”, which significantly narrowed federal jurisdiction under the Clean Water Act. In that case, the Court ruled that wetlands are only protected if they have a continuous surface connection to relatively permanent waters, such as rivers, lakes, or streams, making them “indistinguishable” from those waters. The Sackett ruling rejected broader interpretations that relied on ecological influence rather than physical connectivity, creating a need for regulatory clarity.
New Definitions
To comply with this decision, the proposed rule introduces new definitions intended to reduce ambiguity. “Relatively permanent” refers to waters that flow or hold water year-round or seasonally for extended periods. “Continuous surface connection” means wetlands must physically touch jurisdictional waters without barriers like uplands, though the rule clarifies that certain human made structures such as dams or dikes do not sever connectivity if water still flows between them. The term “tributary” is now defined as a waterbody that contributes flow to a navigable water and has relatively permanent flow. Additionally, the proposal explicitly excludes groundwater from WOTUS jurisdiction, reinforcing that subsurface connections do not qualify under the Clean Water Act. These changes aim to provide clearer, more predictable boundaries for regulated entities.
Affected Entities
Historically, under the “significant nexus” test, wetlands and streams could be regulated if they had a meaningful impact on the chemical, physical, or biological integrity of downstream navigable waters, even without direct surface contact. This approach considered ecological functions such as water filtration, flood control, and wildlife habitat. The Sackett decision eliminated this test, shifting the focus from ecological influence to physical connectivity. The proposed rule is intended to provide clarity for permitting and compliance, particularly for sectors such as agriculture, construction, and land development, rather than serving as a tool for ecological conservation. Under the new standard, wetlands must physically touch a jurisdictional water and hold surface water for a certain duration annually to qualify for protection. This change means many seasonal or isolated wetlands that were previously regulated will no longer fall under federal oversight.
One of the most notable impacts will be on ephemeral wetlands, which only hold water briefly after rainfall and lack a continuous surface connection to a relatively permanent waterbody. Under the new definition, these wetlands will no longer qualify as jurisdictional waters, meaning they will not receive federal protection under the Clean Water Act. While these features often provide important ecological benefits such as temporary habitat and water filtration, the Sackett ruling and subsequent proposal prioritize clear, physical connectivity over ecological function. Seasonal wetlands that hold water during wet periods but remain isolated from jurisdictional waters may also lose protection, leaving states to decide whether to regulate these areas.
Public Comment Timeframe
This proposed rule was published in the Federal Register on November 20, 2025, and is open for public comment until January 5, 2026. During this period, EPA and the Army Corps will host two public meetings, including virtual options, to gather input from stakeholders. According to the EPA’s Public Outreach webpage, the first meeting will be held on December 12 in Bismarck, North Dakota, with sessions at 9:30 a.m. and 11:30 a.m. The website also states that additional meetings are expected to be announced in the coming weeks. A final rule is anticipated later in 2026. Stakeholders, including landowners, developers, agricultural operators, and environmental organizations, are encouraged to review the proposal and submit comments through the official EPA website.
The update represents a significant shift in how federal agencies interpret and enforce the Clean Water Act. By narrowing the scope of WOTUS to waters with clear physical connections, the rule aims to reduce uncertainty and litigation surrounding permitting decisions. However, it also raises questions about the future of wetlands conservation, and the role states will play in filling regulatory gaps. As the comment period progresses, the debate over balancing regulatory clarity with environmental protection is likely to continue.
To discuss the proposed rule and its implications for your facility, please contact your local Trinity office for more information.
