2025-04649Proposed RuleWallet

EPA Begs for Wetland Wisdom After Supreme Court Splashdown

Published Date: 3/24/2025

Proposed Rule

Summary

The EPA and Army Corps are inviting everyone—states, tribes, farmers, businesses, and the public—to share their thoughts on how to define 'waters of the United States' after a big Supreme Court decision. They’re holding listening sessions and asking for written ideas by April 23, 2025, to help shape future rules. This means changes could come that affect water protections and how industries manage water, with plenty of chances to weigh in before any new rules cost or save money.

Analyzed Economic Effects

5 provisions identified: 4 benefits, 0 costs, 1 mixed.

Where lawsuits block the 2023 rule, pre-2015 tests apply

In jurisdictions where courts have preliminarily enjoined the Amended 2023 Rule, the agencies are interpreting "waters of the United States" consistent with the pre-2015 regulatory regime and the Supreme Court's Sackett decision. This interpretation affects which waters are treated as "navigable waters" for Clean Water Act programs such as sections 401, 402, and 404.

"Relatively permanent" waters means year‑round or seasonal flow

The agencies say that, consistent with prior practice, "relatively permanent" tributaries are those that typically flow year‑round or that have continuous flow at least seasonally (for example, typically three months). Only these "relatively permanent" tributaries may be subject to Clean Water Act jurisdiction under the Sackett interpretation.

Adjacency needs a continuous surface connection (must abut)

The agencies are implementing the "continuous surface connection" requirement to mean wetlands or ponds must abut (touch) a jurisdictional water to be considered "adjacent." The agencies rescinded interpretations that assumed a discrete feature (like a ditch, swale, pipe, or culvert) by itself established a continuous surface connection.

You can speak or submit ideas by April 23, 2025

The EPA and Army Corps will hold at least six listening sessions in April–May 2025 and are accepting written recommendations through a public docket. Written recommendations must be received on or before April 23, 2025; verbal comments at sessions will be limited to three minutes and registration details will be posted on EPA's WOTUS outreach webpage.

Ditches dug in uplands that lack permanent flow are generally non‑jurisdictional

Under the pre-2015 regime (and by exclusion in the Amended 2023 Rule), ditches—including roadside ditches—excavated wholly in and draining only uplands that do not carry a relatively permanent flow of water are generally considered non‑jurisdictional. The agencies are soliciting feedback on whether flow regime, excavation location, use, or biological indicators should be used to distinguish jurisdictional from non‑jurisdictional ditches.

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Key Dates

Published Date
Effective Date
3/24/2025
4/23/2025

Department and Agencies

Department
Independent Agency
Agency
Defense Department
Engineers Corps
Environmental Protection Agency
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