backIntroduction
In the continuing battle to define “waters of the United States” (“WOTUS”) – a fundamental jurisdictional element of the scope of the Clean Water Act (“CWA”) – the U.S. Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Corps of Engineers”) (collectively “the Agencies”) released a pre-publication Proposed Rule on November 17 redefining WOTUS.
In March 2025, the Agencies sought public comment to develop a new definition of WOTUS that provides “realistic durability and consistency” while maintaining consistency with the U.S. Supreme Court’s ruling in Sackett v. Environmental Protection Agency, 598 U.S. 651 (2023). Sackett held that the CWA extends federal jurisdiction to “relatively permanent” waters and wetlands with a “continuous surface connection” to WOTUS.
The proposed rule would narrow federal jurisdiction by introducing new exclusions, expanding existing ones, and narrowing key definitions. The Agencies established a 45-day public comment period to inform its final rule, which could be issued as soon as the first quarter of 2026.
Proposed Rule
The proposed rule narrows federal jurisdiction, ostensibly to align with the Agencies’ summary of Sackett, that the CWA “extends to relatively permanent bodies of water connected to traditional navigable waters and wetlands with a continuous surface connection to those waters so that there is no clear demarcation between waters and wetlands” (internal quotations omitted). The proposed rule would make the following changes to the Agencies’ September 2023 Amendments to the January 2023 “Revised Definition of ‘Waters of the United States’”:
- Deleting the longstanding jurisdictional waters category of “interstate waters,” which has historically been both a standalone category and part of the definitions of lakes and ponds;
- Excluding waste treatment systems, prior converted croplands, and ditches constructed or excavated to convey water;
- Excluding groundwater;
- Adding definitions for “continuous service connection,” “ditch,” “prior converted cropland,” “tributary,” “relatively permanent,” and “waste treatment system”; and
- Retaining the definition of “wetlands,” while shifting the focus to determining which wetlands possess a “continuous surface connection” to other WOTUS.
The revised rule focuses heavily on the definitions of “relatively permanent” and “continuous surface connection,” considering the presence of water during the wet season and the location of surface water. The new “continuous surface connection” definition provides a two-part test, requiring the water in question to (1) abut a jurisdictional water and (2) have surface water during the wet season to be covered under the CWA.
The impact of the proposed rule remains to be seen and will likely be the subject of fierce debate by commenters as the outcome will inform CWA permitting and enforcement, implicating civil and criminal liability for companies, developers, landowners, and public entities who seek or contest the need for a permit to dredge and fill various areas or to discharge pollutants into waters. Because fewer waters would be regulated under the proposed rule, commenters are likely to argue that ecosystem protections will decrease, causing economic and environmental losses, such as those discussed in the Regulatory Impact Analysis, as well as disparate state protections. Others will likely argue, as the Agencies do, that the reductions in scope will save money for developers of energy projects and real estate, who can move more quickly by relying on expanded exclusions when obtaining Jurisdictional Determinations from the Corps of Engineers.
Requested Comments
To develop the final rule, the Agencies requested comments on issues such as:
- The definitions of “tributary” and “continuous surface connection”;
- The treatment of natural and artificial features regarding the jurisdictional status of upstream waters;
- The approaches to “relatively permanent,” such as applied to tributaries and wetlands adjacent to traditional navigable waters;
- The various proposed exclusions;
- Whether wetlands, lakes, or ponds that simply abut a jurisdictional water should be considered “indistinguishable” from surface waters;
- Whether the proposed approach is implementable and what impacts a “continuous surface connection” requirement would have on the scope of wetlands, lakes, and ponds covered under the CWA, considering a very small percentage of wetland acreage in the United States is characterized by permanent surface water; and
- Any significant reliance interests that may be impacted by the proposal and on any effects or data about such interests that could inform the Agencies’ Regulatory Impact Analysis.
Next Steps
During the 45-day comment period, the Agencies anticipate two in-person public meetings with options for virtual participation. The dates of these meetings have not been made public, but these meetings are likely to draw wide interest from all stakeholders.
After this comment period closes, EPA will consider comments received and develop a final rule and respond to significant comments. The process to finalize a new EPA regulation can be lengthy, and comment periods have historically been extended. However, if no extension is provided, the comment period will close in January 2026 with a final rule being released as soon as the first quarter of 2026. After that, litigation over the scope of the then-final rule is nearly certain.
The King & Spalding Environmental, Health and Safety team is currently counseling clients regarding the proposed rule, expected agency actions, and potential impacts on business. If you would like to submit comments or discuss how these changes may impact your organization, please contact us. Our team is available to assist you in preparing feedback for the EPA or to help you understand the potential implications for your operations. We will continue to track developments on the definition and implementation of WOTUS by the Agencies over the coming months.