More than two years after the high court ruled to limit the scope of the Clean Water Act, updated definitions of “waters of the United States” are finally moving forward.
The Environmental Protection Agency (EPA) and the Department of the Army announced a proposed rule to revise the definition of “waters of the United States,” also known as WOTUS, aligning it with the Supreme Court’s decision in Sackett v. EPA, which narrowed the reach of the Clean Water Act (CWA).
“We heard from Americans across the country who want clean water and a clear rule,” said EPA Administrator Lee Zeldin. “No longer should America’s landowners be forced to spend precious money hiring an attorney or consultant just to tell them whether a Water of the United States is on their property.”
The updated definition would focus on relatively permanent, standing or continuously flowing bodies of water—which includes streams, oceans, rivers and lakes—and wetlands that are connected and indistinguishable from such bodies of water.
The proposed rule will allow the federal government to regulate wetlands only if they meet a two-part test. First, the wetland must contain surface water throughout the wet season. Second, they must be touching a river, stream or other waterbody that also flows throughout the wet season.
The proposal also clarifies exclusions for certain ditches, prior converted cropland and waste treatment systems, and adds a new exclusion for groundwater, which will no longer be considered a WOTUS. The rule clarifies that prior converted cropland only loses its designation when it has been abandoned and reverted to wetlands.
Interstate waters will no longer be included in “jurisdictional waters,” to make clear that such waters do not gain jurisdiction just by crossing state lines, the EPA said.
Damien Schiff, a Pacific Legal Foundation senior attorney who argued the Sackett cases at the Supreme Court, said the proposal is not perfect, but a meaningful step forward.
“The proposal does have a flaw: it extends EPA and Corps authorities, at least on paper, to wetlands that are clearly distinguishable from neighboring waters for many months of the year, which conflicts with the Supreme Court’s holding in Sackett that only wetlands ‘indistinguishable’ from covered waters can be regulated,” Schiff said in an emailed statement.
“The Sackett Court allowed just two exceptions—drought and low tides—neither of which seems broad enough to justify the agencies’ so-called ‘wet season’ standard,” he added.
However, he continued that the proposal was still a significant improvement over the Biden-era rule.
The rule was published in the Federal Register on Nov. 20 and will be open to a 45-day public comment period. To submit a comment, visit regulations.gov and search for docket ID EPA-HQ-OW-2025-0322.
Background
In 2023, the U.S. Supreme Court (SCOTUS) ruled in Sackett v. EPA to drastically narrow the scope of wetlands protected under the CWA. SCOTUS found that only wetlands with a “continuous surface connection” that make it “indistinguishable” from federal waterways are protected by federal law.
At the time, the court did not set a definition for what a “continuous surface connection” is or what makes a water body “indistinguishable.” The new proposal aims to set definitions for those terms, among others.
In March of this year, the EPA and Army Corps issued a memo clarifying the limits on federal jurisdiction over adjacent wetlands. This proposed rule is the next step toward establishing a definition.
Industry support, green opposition
Cattle groups applauded the announcement.
The National Cattlemen’s Beef Association (NCBA) said the WOTUS definition has been a longstanding and frustrating issue for farmers and ranchers, with the definition changing every few years.
“Often, this meant that small water features like prairie potholes or dry ditches suddenly fell under federal regulation,” said NCBA President Buck Wehrbein.
The new rule ensures that only large bodies of water and their main tributaries fall under federal jurisdiction. In the past, the definition placed small, isolated water features under regulation, which could have included water features that contained water only after large storms, NCBA said.
“Today’s WOTUS announcement finally acknowledges that the federal government should work to protect lakes, rivers and oceans, rather than regulating ditches and ponds on family farms and ranches,” said NCBA Chief Counsel Mary-Thomas Hart.
The group, along with its state affiliates, plans to submit comments before the rule is finalized.
Ranchers-Cattlemen Action Legal Fund, USA (R-CALF) also expressed their support for the proposal.
“Our initial review suggests this proposed rule is a commonsense approach to meeting Congress’s objective in protecting genuine navigable waters,” said Bill Bullard, CEO of R-CALF. “Farmers and ranchers need the clarity provided by the proposed rule so they will know what does and what does not constitute Clean Water Act jurisdiction without having to incur considerable legal expenses associated with overreaching enforcement actions.”
The U.S. Cattlemen’s Association (USCA) said it appreciates the administration providing clarity on the WOTUS rule. The group wrote in a Facebook post that it looks forward to collaborating with EPA on defining terms such as “relatively permanent” and “excluded ditches” and removing “interstate waters” from under the WOTUS designation.
“USCA applauds the work done to reach this point and recognizes the work still needed to cross the finish line,” the organization said.
The Congressional Western Caucus, a group of House members that advocates for western and rural policies, said the proposal will cut red tape and bring clarity for farmers, ranchers, businesses, landowners and energy producers.
“Under the Biden Administration the EPA used a broad definition of WOTUS resulting in private property owners having their rights severely curtailed due to government overreach,” said Chairman Doug LaMalfa (R-CA-01) in a statement.
The Environmental Defense Fund (EDF) argued the proposal will bring “tremendous uncertainty and risk” to drinking water, flood protections and species’ critical habitats. The group said that a 2024 analysis found that new requirements for wetland protections could lead to nearly all wetlands without CWA protections.
“Requirements in the new rule are not based in science, difficult to implement in practice and will create a dangerous lack of clarity,” said EDF Associate Vice President Will McDow.
EDF called the new wetness test arbitrary, saying there is no scientific evidence that aligns it with the CWA. — Anna Miller Fortozo, WLJ managing editor
