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For decades, the phrase “waters of the United States” (WOTUS) has dictated whether a wetland, stream, or pond falls within federal jurisdiction under the Clean Water Act (CWA). Two years and a change in administration later, EPA and the U.S. Army Corps of Engineers have returned with a new proposal aimed at aligning the rulebook with the Supreme Court’s 2023 decision in Sackett v. EPA and restoring a degree of predictability to one of the most litigated terms in environmental law.
According to EPA Administrator Lee Zeldin and Assistant Secretary of the Army for Civil Works Adam Telle, the proposal represents a “faithful” implementation of Sackett, one that narrows federal reach to waters that are relatively permanent and wetlands that are indistinguishably connected to them. The agencies call it a step toward clarity and economic growth; others will undoubtedly call it a new chapter in an ongoing jurisdictional saga.
From Sackett to a Redefined WOTUS
The Sackett Court held that the CWA covers only “relatively permanent, standing or continuously flowing bodies of water” connected to traditional navigable waters and wetlands with a “continuous surface connection” to such waters. By rejecting the long-used “significant nexus” test, the Court dismantled years of case-by-case ecological analysis in favor of a more physical, hydrologic connection.
Shortly after Sackett, EPA and the Army issued a rule (the 2023 Conforming Rule) that excised the “significant nexus” standard but left unresolved practical questions about implementation—most notably what counts as “relatively permanent” and what qualifies as a “continuous surface connection.” The 2025 proposed rule answers those questions with new definitions, detailed guidance and notable deletions.
Key Changes in the 2025 Proposal
- “Relatively Permanent” Gets a Definition
For the first time, “relatively permanent” would be defined to mean “standing or continuously flowing bodies of surface water that are standing or continuously flowing year-round or at least during the wet season.” In practice, that means ephemeral features—streams or gullies that carry water only in direct response to rainfall—are out. Seasonal streams with continuous wet-season flow, however, could still qualify.
This change provides a threshold grounded in hydrology rather than ecological benefits or importance. EPA suggests that field staff and landowners can use tools such as the Corps’ Antecedent Precipitation Tool and streamflow duration assessment methods to determine whether a feature maintains flow throughout the wet season.
- A New Two-Part Test for Wetlands
The agencies’ proposed definition of “continuous surface connection” provides a two-prong test for wetlands that requires both (1) abutment (touching) of a jurisdictional water; and (2) having surface water at least during the wet season. This dual requirement codifies the Sackett mandate that wetlands be “as a practical matter indistinguishable” from the waters they border. Wetlands separated from navigable waters by upland, berms or other barriers would generally fall outside federal coverage unless surface water physically connects them during the wet season. - Elimination of Interstate Waters as a Separate Category
Perhaps the most striking deletion is the removal of interstate waters as an independent basis for jurisdiction. Under prior rules, a pond or stream could qualify as WOTUS simply because it crossed a state line. The agencies concluded that approach exceeds Congress’s intent and is inconsistent with Sackett’s focus on navigability and surface connection. Interstate waters would remain jurisdictional only if they also meet another category, such as being a traditional navigable water or a relatively permanent tributary. - Revised Definitions of Tributaries and Ditches
The term “tributary” would now mean a body of water with “relatively permanent flow,” a bed and banks, and a connection—direct or indirect—to a downstream navigable water. Importantly, a tributary that loses flow through an ephemeral stretch—i.e., waters with surface flow only in direct response to precipitation—would no longer confer jurisdiction upstream.
The proposal also formalizes what has long been an informal rule: ditches “constructed or excavated entirely in dry land” are excluded from WOTUS. Ditches built in wetlands or that relocate natural streams would remain jurisdictional if they meet the tributary test.
- Groundwater Explicitly Excluded
The proposed rule expressly excludes groundwater, including subsurface drainage systems, consistent with long-standing agency practice. Although groundwater has never been interpreted as a WOTUS, the agencies now propose to codify this interpretation by adding formal definitions that make the exclusion explicit in the regulatory text. - Clarifications to Waste Treatment and PCC Exclusions
The agencies propose to retain the long-standing exclusions for waste treatment systems and prior converted cropland, with revisions intended to enhance clarity and consistency. The proposed rule adds a new definition of waste treatment system to include all components designed to meet CWA requirements—such as lagoons, settling ponds and other facilities used to convey, retain or remove pollutants from wastewater before discharge.
The rule also clarifies that the prior converted cropland exclusion would no longer apply once cropland has been abandoned—meaning it has not been used for or in support of agricultural purposes, including idling for conservation or soil recovery, for more than five years—and the land has reverted to wetlands. Such wetlands would not automatically become jurisdictional; they would only fall under federal authority if they meet the rule’s definition of adjacent wetlands.
What the Rule Means in Practice
If finalized, the proposal would narrow federal jurisdiction, reducing the number of wetlands and streams subject to CWA permitting. In the Regulatory Impact Analysis, the agencies reference a comparison of National Wetlands Inventory data showing approximately 17.4 million acres of wetlands that may have surface water during the wet season out of roughly 90.9 million total wetland acres. Although the agencies caution that this information does not represent a formal estimate of jurisdictional change, the figures imply that as much as 81% of wetlands might no longer qualify as federally regulated if those proportions hold nationally.
The agencies characterize the rule as “deregulatory in nature,” expecting cost savings from fewer jurisdictional determinations, reduced mitigation obligations and shorter permitting timelines. The greatest effects are anticipated to be under the Section 404 dredge-and-fill program, where fewer activities would require permits or compensatory mitigation. At the same time, the agencies acknowledge possible forgone environmental benefits, including reduced ecological services and fewer Section 404 mitigation projects, but stress that those considerations “cannot dictate where to draw the line between Federal and State or Tribal waters, as those are legal distinctions that have been established within the overall framework and construct of the Clean Water Act.”
For now, the 2023 Conforming Rule remains in effect while the agencies complete the current rulemaking process. Until a new rule is finalized and takes effect, federal jurisdictional determinations and permitting will continue to follow the definitions and procedures outlined in the 2023 Conforming Rule. Approved Jurisdictional Determinations (AJDs), which identify whether specific waters fall within federal CWA jurisdiction, generally remain valid for five years unless new information or rule changes warrant reevaluation. As a result, projects currently operating under valid AJDs may continue relying on those determinations, though applicants should monitor the ongoing rulemaking for potential implications once a final rule is issued.
Next Steps
Publication in the Federal Register on November 20 has triggered a 45-day public comment period running through January 5, 2026. Comments may be submitted through the Federal Register portal.
EPA and the Army plan to hold two hybrid public meetings where stakeholders can speak directly to the agencies. Details and registration links will appear on EPA’s WOTUS Public Outreach and Stakeholder Engagement webpage.
Following review of public input, the agencies aim to move “expeditiously” toward a final rule—one they hope will withstand both judicial scrutiny and the political swings that have plagued WOTUS for nearly half a century.
Conclusion
The proposal reflects a narrower federal role rooted in the Sackett decision and grounded in observable water connections. The agencies describe it as “ensuring clarity, simplicity, and improvements that will stand the test of time, while providing for durable, stable, and more effective and efficient jurisdictional determinations and permitting actions.” By emphasizing measurable hydrology—surface flow during the wet season—rather than the biological or chemical connectivity used under the former “significant nexus” approach, the proposal seeks to establish clearer, field-based criteria that could allow landowners to assess jurisdiction more efficiently. As with previous WOTUS iterations, however, the final version is expected to face judicial review once issued. Pillsbury will continue to monitor developments and provide updates as the rulemaking progresses.
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