Waters of the United States Reconsidered

he United States Environmental Protection Agency (U.S. EPA), in a press release on March 12, 2025, announced the decision to review the definition of “waters of the United States” (WOTUS) with the U.S. Army Corps of Engineers (USACE). The U.S. EPA and USACE (Agencies) have been granted authority via the Clean Water Act (CWA) to define WOTUS in U.S. regulations because the CWA does not provide a definition for WOTUS. The CWA instead provides approved jurisdictional determinations and delegates authority to the Agencies to define WOTUS in regulations.

In the press release U.S. EPA stated that the review will “be guided by the Supreme Court’s decision in Sackett v. Environmental Protection Agency (Sackett), which stated that the Clean Water Act’s use of ‘waters’ encompasses only those relatively permanent, standing or continuously flowing bodies of water forming streams, oceans, rivers and lakes. The Sackett decision also clarified that wetlands would only be covered when having a continuous surface connection to waterbodies that are ‘waters of the United States’ in their own right.” As part of the press release, U.S. EPA provided a pre-publication notice to be used as initial guidance for providing recommendations to the Agencies on the definition of WOTUS. The official version of the document will be provided via the Federal Register and Regulations.gov in Docket No. EPA-HQ-OW-2025-0093 upon publication, and the pre-publication version will be removed.

The Supreme Court provided guidance for jurisdiction over adjacent wetlands in Sackett as a two-part test in order to provide consistency in determining the scope of ‘adjacent wetlands’ and ‘continuous surface connection’. The two-part test includes the following:

1. The adjacent body of water must be a WOTUS, or a relatively permanent body of water connected to a traditional navigable water; and
2. The ‘wetland’ (33 CFR 328.3(c) and 40 CFR 120.2(c)) must have a continuous surface connection to a requisite covered water, making it difficult to determine where the water ends and wetland begins.

The Agencies are aware that during periods of drought, low tide, or interruptions to surface connections, the determination of where a ‘wetland’ begins, and ends is not always clear. As a result, the Agencies will provide additional guidance on a case-by-case basis in the future.

Next Steps and Ways to Get Involved

As part of this announcement, the Agencies have provided information on how to provide feedback on the definition of WOTUS as part of a 30-day recommendation public docket and at least six listening sessions.

Stakeholder Feedback Opportunities

Written recommendations are being considered for feedback by the Agencies for the following scopes, as the designations for each scope have varied throughout the different regulatory rulings since the implementation of the CWA:

• “Relatively permanent” waters and to what features this phrase applies
• “Continuous surface connection” and to which features this phrase applies
• Jurisdictional ditches

Upon publication of the finalized document of the notice in the Federal Register, written recommendations must be received on or before 30 days after the date of publication.

Public Listening Sessions

In late March through April 2025, the Agencies will provide web-based and in-person conferences for persons or organizations to provide verbal recommendations during the sessions and will be limited in time. Registration information will be provided on U.S. EPA’s Public Outreach and Stakeholder Engagement Activities page once available. The Agencies anticipate holding the following listening sessions:

• Two sessions for stakeholders
• One session for States
• One session for Tribes
• One session for agricultural stakeholders
• One for environmental and conservational stakeholders.

The listening sessions will be recorded and posted to U.S. EPA’s Public Outreach and Stakeholder Engagement activities page, as was done previously for the 2023 Sackett ruling.

If you have any questions or would like assistance in evaluating how your individual permits may be impacted regarding the reconsideration of the WOTUS under the CWA, please reach out to me at cnagel@all4inc.com. ALL4 will continue to track updates to additional guidance or rulemaking regarding the definition of WOTUS, as the determinations may impact future permitting decisions with regard to wetlands as part of WOTUS