EPA and Army Corps Release Proposed WOTUS Rule Aimed at Clarity After Sackett

On November 20, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers released a long-anticipated proposal to revise the definition of “waters of the United States” (WOTUS). The proposed rule seeks to align federal jurisdiction under the Clean Water Act (CWA) with the Supreme Court’s landmark decision in Sackett v. EPA (2023), while addressing years of regulatory uncertainty following Rapanos, the 2015 Clean Water Rule, the 2020 Navigable Waters Protection Rule, and the 2023 amendments.

For regulated industries and public agencies, the proposal is significant for two reasons:

1. It reflects the clearest effort in a decade to adopt a durable, administrable definition of WOTUS; and
2. It introduces multiple alternative regulatory approaches within the proposal itself, signaling the agencies’ desire for robust public input before finalizing any new rule.

Public comments are due January 5, 2026, under Docket ID No. EPA-HQ-OW-2025-0322.

I. The Supreme Court’s Direction in Sackett: Clarity, Predictability, and the Limits of Federal Power

Any serious discussion of WOTUS must begin with Sackett. The Court’s 2023 decision clarified the test for federal jurisdiction over wetlands and emphasized that regulated parties must have reasonably clear notice of the law’s reach. The majority held that jurisdiction must be grounded in clear, administrable criteria consistent with Congress’s limitation to “navigable waters.”

The Court underscored this in unusually direct language. In criticizing the “significant nexus” test, Justice Alito, writing for the majority, stated that a regulatory scheme that leaves citizens dependent on “the discretion of government officials” or the judgment of experts who “cannot say whether or not the Act applies to a particular parcel” raises serious constitutional concerns. The majority held that jurisdiction must be grounded in clear, objective criteria – criteria consistent with Congress’s textual limitation to “navigable waters.”

In short: the Court demanded a simpler, more predictable jurisdictional line.

EPA and the Corps were therefore compelled to revisit their 2023 rule and bring it in line with the Court’s standard:

• Wetlands must have a continuous surface connection making them “indistinguishable” from a jurisdictional water.
• Tributaries must have relatively permanent flow.
• Groundwater cannot be used as a jurisdictional connector.
• The significant nexus test cannot be used to establish jurisdiction under Sackett.

This new proposal explicitly embraces those holdings.

II. Overview of the Proposed Rule

1. Wet-Season Framework for “Relatively Permanent Waters”

The agencies propose to identify “relatively permanent” tributaries using regionally defined wet-season flow, rather than year-round hydrology alone. This is apparently intended to give field staff and applicants clearer, more predictable standards for determining whether a tributary qualifies as a WOTUS. The proposal invites comment on how “wet-season” should be determined and applied in the field.

2. New Definition of “Tributary”

Under the proposal, a tributary must:

• have relatively permanent flow, and
• connect to a downstream traditional navigable water.

Tributaries may pass through natural or artificial (e.g., culverts, pipes, ditches) features – so long as they convey relatively permanent flow.

A break in relatively permanent surface flow would sever jurisdiction upstream under the proposal. Unlike prior WOTUS definitions, jurisdiction cannot “skip” or otherwise be extended over non-jurisdictional segments.

3. Updated “Continuous Surface Connection” for Wetlands

EPA and the Corps propose clarifications consistent with Sackett:

• Wetlands must abut a navigable water or a relatively permanent tributary.
• Seasonal wet-season surface water may satisfy the test if the wetland remains physically connected.
• Discrete artificial features (culverts, pipes, swales) cannot extend jurisdiction unless there is continuous flow.

This approach aligns with Sackett’s requirement that wetlands have a continuous surface connection making them ‘indistinguishable’ from jurisdictional waters. This is a departure from the 2023 rule, which treated artificial connections as sufficient. The agencies rescinded that interpretation earlier this year.

4. Lakes and Ponds

The proposed rule removes “intrastate” as a jurisdictional qualifier for lakes and ponds and revises how adjacency and surface connection are evaluated. The agencies expressly seek comment on multiple alternative models for assessing these waterbodies.

5. Exclusions – Including Several Alternatives

The agencies revise and request comment on:

• Waste treatment system exclusion (including multiple definitional alternatives)
• Prior converted cropland (one option would vest determination authority solely in USDA)
• Ditches (alternative definitions distinguishing upland-excavated features from potentially jurisdictional ones)

The presence of these alternatives indicates the agencies’ apparent willingness to reshape portions of the rule based on stakeholder input.

III. Why the Agencies Included Multiple Alternative Approaches

This proposal contains more built-in alternatives than any prior WOTUS proposal. EPA and the Corps explicitly acknowledge the difficult balance they must strike:

1. Sackett constrains federal authority more sharply than any prior case.
2. States vary widely in their wetland protection frameworks.
3. Regulated parties need clarity, but hydrological systems are inherently variable and can be complex.
4. Courts have repeatedly rejected prior rules as either overbroad or insufficiently justified.

By embedding alternatives – such as differing definitions for tributaries, wetlands, lakes, and exclusions – the agencies are effectively asking:

“Tell us what works. Show us what is implementable. Show us what is legally durable.”

This means the comment period is unusually important. The agencies are signaling they intend to consider revisions.

IV. Reactions from Stakeholders – and Additional Context

Stakeholder reactions have been mixed, as reflected in national media coverage and industry commentary.

1. Environmental Advocacy Groups

Some environmental groups have argued that narrowing federal jurisdiction exposes wetlands and headwater features to significant risk. These concerns reflect genuine policy preferences but ignore the legal constraints imposed by the Constitution and the CWA as discussed by the Supreme Court.

Congress has never authorized EPA or the Corps to regulate all wetlands – nor could it under the limitations imposed on it by the U.S. Constitution. The CWA’s definition of “navigable waters” limits federal authority, and the Court has repeatedly emphasized that states – not the federal government – retain primary authority over intrastate waters and wetlands.

2. State Primacy in Wetland Regulation

Congressman Brian Mast (R-FL) praised the proposed rule as a step toward returning responsibility to the states, noting that communities with the most at stake are often the most attentive stewards of local waters. His position reflects a federalism-based view: that the appropriate forum for expanding wetland protection is within state legislatures, not Congress or EPA.

As federal jurisdiction narrows, state authority becomes more important. Many states already administer robust wetland programs that exceed federal requirements and protect isolated and intrastate wetlands regardless of WOTUS status.

These examples demonstrate that federal narrowing does not necessarily mean diminished protection – rather, it shifts decisions to the level of government best suited for local environmental management and can best address the hydrological variables that make it difficult to craft a one size fits all approach.

3. Potential Conflicts with Maui?

Since the Supreme Court’s County of Maui decision, concerns have emerged about confusion between sections 402 and 404 of the CWA. The proposed WOTUS definition introduces a wet-season standard that has potential to conflict with the decision. While some commentators perceive potential tension, the decisions address different and functional-equivalent discharges; Sackett addresses the geographic scope of WOTUS and rejects groundwater as a connector for jurisdiction.

V. Next Steps for Regulated Entities

Given the breadth of the proposed rule and the number of alternatives offered, we recommend the following:

1. Consider Filing Comments

Regulated industries, utilities, agriculture, developers, and local governments may benefit from providing input on:

• the wet-season definition,
• the tributary standard,
• the treatment of lakes and ponds, and
• exclusion alternatives.

The rule is open for public comment for 45 days, with a deadline of January 5, 2026. Written comments must reference Docket ID No. EPA-HQ-OW-2025-0322 and may be submitted through Regulations.gov or orally during one of two hybrid public meetings (dates to be announced).

2. Review Projects in the Pipeline

Projects with pending jurisdictional determinations or permit strategies should review whether the proposed rule could affect their jurisdictional status or timelines.

3. Monitor State-Level Activity

In states without robust wetland programs, legislators may take action. Clients with multi-state operations should track emerging state initiatives.

Conclusion

The November 2025 WOTUS proposal represents a meaningful attempt to produce a durable, judicially defensible definition of federal jurisdiction – one that meets the Supreme Court’s demands for clarity while acknowledging the hydrological complexity of the nation’s waters. EPA and the Corps have signaled openness to stakeholder input and have included significant alternative approaches for consideration.

For businesses, public agencies, and landowners, the proposal presents both challenges and opportunities. Clarity may finally be in sight, but the next two months will be critical in shaping what the final rule looks like.

About Our Authors

Jeff Littlejohn is a Senior Policy Advisor at Adams & Reese, advising clients out of the firm's Tallahassee office. An experienced leader in environmental regulatory and policy, Jeff offers regulatory solutions, policy support, and executive direction, based on his background in private sector consulting engineering, GR, and executive leadership within the Florida Department of Environmental Protection. Jeff holds leadership positions in the National Stormwater Trust and Florida Environmental Network and previously served as a principal at Isiminger & Stubbs Engineering.

Rob Fowler serves as the Adams & Reese Environmental Team Leader, assisting clients throughout the firm’s regional and national footprint on environmental matters. Rob has over 28 years of experience in environmental and natural resource law. Rob helps clients navigate the complexities of the Clean Water Act, Clean Air Act, Surface Mining Control and Reclamation Act, Resource Conservation & Recovery Act, Comprehensive Environmental Response, Compensation, and Liability Act, Endangered Species Act, National Environmental Policy Act, and various historic preservation laws.

Herschel Vinyard is a leading member of the Adams & Reese Intersection of Business and Government Practice and serves as Partner in Charge of the Jacksonville office. He has practiced environmental law and government relations for 30 years. He is experienced in state environmental law and policy, government affairs, environmental regulations, permitting, with issues falling under the scope of the Resource Conservation and Recovery Act (RCRA), Clean Water Act (CWA), and Comprehensive Environmental Response Compensation and Liability Act (CERCLA, also known as Superfund), including state environmental statutory counterparts.