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 The agencies rescinded interpretations that assumed a discrete feature (like a ditch, swale, pipe, or culvert) by itself established a continuous surface connection.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
Department and Agencies
Related Federal Register Documents
2026-18317, Updated Definition of “Waters of the United States”
The purpose of this supplemental notice of proposed rulemaking is for the U.S. Environmental Protection Agency (EPA) and the Department of the Army ("the agencies") to supplement and seek additional comment on certain aspects of an earlier proposal, published on November 20, 2025, to revise the regulations defining the scope of waters federally covered under the Clean Water Act in light of the U.S. Supreme Court's 2023 decision in Sackett v. Environmental Protection Agency. As stated in the agencies' November 20, 2025 Notice of Proposed Rulemaking (NPRM), the agencies intend for this rulemaking to provide greater regulatory certainty and increase Clean Water Act program predictability and consistency by clarifying the definition of "waters of the United States." After consideration of the public comments received on the NPRM, the agencies are issuing this notice to supplement the NPRM with additional regulatory options on certain aspects of the proposed rule.
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