An updated “common-sense” definition for what the phrase “waters of the United States” means under the Clean Water Act (CWA) has been proposed by the U.S. Environmental Protection Agency (USEPA). The proposal follows the Supreme Court decision in Sackett v. Environmental Protection Agency in favor of Idaho landowners who sued USEPA over its CWA interpretation that classified the Sacketts’ property as a wetland.
The key proposed revisions to the WOTUS Rule include:
- Defining key terms like “relatively permanent,” “continuous surface connection,” and “tributary” to appropriately delineate the scope of WOTUS consistent with the CWA and Supreme Court precedent.
- Establishing that jurisdictional tributaries must connect to traditional navigable waters either directly or through other features that provide predictable and consistent flow.
- Reaffirming that wetlands must be indistinguishable from jurisdictional waters through a continuous surface connection, which means that they must touch jurisdictional water and hold surface water for a requisite duration year after year.
- Strengthening State and Tribal decision-making authority by providing clear regulatory guidelines while recognizing their expertise in local land and water resources.
- Preserving and clarifying exclusions for certain ditches, prior converted cropland, and waste treatment systems along with adding a new exclusion for groundwater.
- Incorporating locally familiar terminology, such as “wet season,” to help determine whether a water body qualifies as WOTUS.
- In addition, the limitation to wetlands that have surface water at least during the wet season and abut jurisdictional water will further limit the scope of permafrost wetlands that are considered to have a continuous surface connection under the proposed rule.
The proposed changes are intended to provide clarity and consistency to the continuous surface connection definition. USEPA says the definition of WOTUS influences Clean Water Act implementation, including whether farmers, landowners, and American businesses must secure permits before they can pursue projects that might impact surface water quality. The proposed WOTUS Rule was informed by input from a pre-proposal recommendations docket and consultation comments from States, Tribes, and local governments.
The WOTUS Rule is open for public comment on the Federal Register through January 5, 2026.