Agencies Release Revised WOTUS Proposed Rule, Open 45-day Public Comment Period

On November 20, 2025, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (the “Agencies”) published a proposed rule to revise the Biden-era rule defining “waters of the United States” (WOTUS). The proposal seeks to update the definition of WOTUS to reflect the U.S. Supreme Court’s 2023 decision in Sackett v. EPA, which imposed a significantly more restrictive interpretation of the Clean Water Act’s (CWA) jurisdiction. This proposal marks the fifth regulatory update of the WOTUS definition since 2015.

The Agencies have opened a 45-day public comment period and will host two in-person public meetings, with a virtual participation option available. Written comments are due January 5, 2026. Further details on the public meetings will be provided as they become available on EPA’s website.

The proposed rule focuses federal jurisdiction on “relatively permanent” waters—those standing or continuously flowing year-round or at least during the wet season—including streams, rivers, lakes, oceans, and wetlands that are connected and “indistinguishable” from such waterbodies. It would also remove “interstate waters” from automatic jurisdiction, instead requiring them to be evaluated under other jurisdictional categories and the two-prong test set forth in Sackett. Other changes include clarifying which ditches, prior converted cropland, and waste treatment systems are not covered, and explicitly excluding groundwater from the definition of WOTUS. The proposed rule is anticipated to drastically reduce the number of wetlands currently subject to CWA jurisdiction, according to the Regulatory Impact Analysis accompanying the rule. 

The Agencies have stated that these revisions are designed to fully implement the Supreme Court’s Sackett guidance, while also reducing regulatory ambiguity and permitting burdens. 

Key elements of the proposal:

• Relatively permanent: defined as “standing or continuously flowing bodies of surface water that are standing or continuously flowing year-round or at least during the wet season.”
• Continuous surface connection: defined as “having surface water at least during the wet season and abutting (i.e., touching) a jurisdictional water.”
• Tributary: defined as “a body of water with relatively permanent flow, and a bed and bank, that connects to a downstream traditional navigable water or the territorial seas, either directly or through one or more waters or features that convey relatively permanent flow….a tributary does not include a body of water that contributes surface water flow to a downstream jurisdictional water through a feature such as a channelized non-jurisdictional surface water feature, subterranean river, culvert, dam, tunnel, or similar artificial feature, or through a debris pile, boulder field, wetland, or similar natural feature, if such feature does not convey relatively permanent flow. When the tributary is part of a water transfer (as that term is applied under 40 CFR 122.3) currently in operation, the tributary would retain jurisdictional status.”
• Exclusions from WOTUS Definition: The proposed rule introduces additional exclusions and broadens existing exclusions for prior converted cropland, ditches, wastewater treatment systems, and groundwater.

The agencies emphasized that the proposal was informed by extensive feedback from states, tribes, local governments, and stakeholders through consultations and pre-proposal input.

How BBK can help

BBK will continue to monitor developments of the proposed rule as well as the legal and policy implications. For questions about how the regulation may impact ongoing or proposed public infrastructure projects, please contact BBK’s Government Affairs team. 

BBK can assist if you are interested in submitting comments.

Background

The Sackett v. EPA case stemmed from a long-running legal battle over whether the Sackett family's Idaho property was subject to federal permitting requirements under the CWA.

WOTUS is a threshold term under the CWA used to establish the scope of jurisdiction for federal waters. The CWA defines “navigable waters” as “the waters of the United States, including the territorial seas,” but does not specifically define WOTUS itself. As a result, the agencies have defined the term by regulation since the 1970s. The scope of WOTUS has since been debated and litigated for decades, resulting in numerous rulemakings.

In 2023, the Supreme Court issued a ruling in Sackett that brought greater clarity to the scope of federal water protections. The Court decisively ended the “significant nexus” test for jurisdictional waters and wetlands established in Justice Kennedy’s plurality opinion in the 2006 decision Rapanos v. United States. Justice Alito and the majority largely adopted a narrower test proposed in Justice Scalia’s four-justice opinion in Rapanos to determine the meaning of WOTUS that is protected by the CWA. The two-prong test to determine jurisdiction over an adjacent wetland requires: (1) “that the adjacent [body of water constitutes]…’water[s] of the United States’ (i.e. a relatively permanent body of water connected to traditional interstate navigable waters),” and (2) “that the wetland has a continuous surface connection with water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins,” or that it is “indistinguishable,” from the water.

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