On November 17, 2025, U.S. EPA and the Army Corps announced proposed revisions to the 2023 definition of “waters of the United States” (WOTUS) which the Agencies expect “to be deregulatory in nature” – i.e. narrowing the scope of waterbodies subject to federal jurisdiction under the Clean Water Act. The Proposed Rule is intended to fully implement the Supreme Court’s 2023 decision in Sackett v. EPA by ensuring federal jurisdiction is focused on relatively permanent, standing or continuously flowing bodies of water (e.g. streams, oceans, rivers, and lakes) and wetlands that are connected to and indistinguishable from such waterbodies.
In furtherance of the Agencies’ intent, the Proposed Rule defines for the first time the terms “relatively permanent” and “continuous surface connection”. Notably, the term “continuous surface connection” is defined such that, for wetlands to be federally jurisdictional, wetlands must: (1) abut a jurisdictional water, and 2) have surface water at least during the wet season. The Proposed Rule also redefines “ditch”, “tributary”, “prior converted cropland” and “waste treatment system”, and provides an express exclusion for groundwater.
A pre-publication version of the Proposed Rule is available here. Comments on the Proposed Rule will be due within 45 days after publication in the Federal Register. Stay tuned for more information, as the WOTUS saga continues.