On Friday the U.S. Environmental Protection Agency ("EPA") and the Department of the Army announced an intention to engage with stakeholders and receive public input before taking administrative action to define the scope of "waters of the U.S." ("WOTUS") under the Clean Water Act. The agencies are specifically seeking input on three key features of the WOTUS definition: (1) what constitutes "relatively permanent" waters; (2) how "continuous surface connection" should be defined; and (3) the scope of jurisdictional ditches.

Relevant History

The agencies’ last formal attempt to amend the definition of WOTUS was in January 2023. This was enjoined in roughly half the states in April 2023 by a U.S. District Court in North Dakota and then portions rendered invalid in May 2023 by the U.S. Supreme Court in its Sackett v. EPA decision. To conform the regulation to Sackett, EPA issued a conforming rule in September 2023, but it only applied in that portion of the country implementing the January 2023 regulation, with the other half having returned to the pre-2015 WOTUS regulatory regime. On March 12, 2025, EPA officially rescinded that portion of the January 2023 rule that defined “adjacent” wetlands to include those that “are connected to these waters by a discrete feature like a non-jurisdictional ditch, swale, pipe, or culvert.” EPA stated it would interpret “adjacent” only to mean “abutting,” with a process forthcoming that would further define that term.

Potential Changes to WOTUS Rule

First, EPA and the Army Corps of Engineers are seeking input on how a possible revision of the WOTUS rule should address the scope of "relatively permanent" waters and define what features that phrase applies to, particularly in the context of tributaries.

Before the 2023 Sackett v. EPA decision, agencies employed a wide variety of shifting terminology and criteria for determining which tributaries are WOTUS. In Sackett, the Supreme Court held that WOTUS includes only those "relatively permanent, standing or continuously flowing bodies of water forming geographic features that are described in ordinary parlance as streams, oceans, rivers and lakes." 

EPA and the Army Corps of Engineers specifically want feedback on whether flow regime, flow duration, seasonality, or other water feature characteristics should inform a definition of "relatively permanent," and to what water features the phrase "relatively permanent" should apply. Additionally, the agencies seek feedback regarding how to identify "relatively permanent" tributaries in the field.

Second, EPA and the Army Corps of Engineers are seeking input on the definition of "continuous surface connection" and to which water features this phrase should apply, particularly "adjacent" wetlands and certain intrastate non-navigable waters.

 In Sackett, the Supreme Court held that "adjacent" wetlands are those that have a "continuous surface connection" to a jurisdictional water.

Currently, under the operative regulatory regimes, the agencies are implementing "continuous surface connection" to mean abutting. The agencies seek feedback on what it means to "abut" a jurisdictional water, whether that includes wetlands behind a berm or other natural landform when that landform provides evidence of a continuous surface connection. They also seek feedback on whether artificial features such as flood or tide gates can remove a wetland from being considered "adjacent" to the jurisdictional water on the other side of the artificial feature.

Additionally, in Sackett the Court provided that "temporary interruptions in surface connection may sometimes occur because of phenomena like low tides or dry spells." The agencies seek feedback on how to interpret and implement that language in determining whether a "continuous surface connection" exists.

Third, EPA and the Army Corps of Engineers are seeking input on the scope of jurisdictional ditches and whether any descriptive or definitional concepts such as flow patterns, uses, features, or biological indicators could help clarify which channels are covered.

Methods for Providing Input

EPA and the Army Corps of Engineers are requesting written recommendations on the above issues, and offering public listening sessions.

Written recommendations must be received on or before April 23, 2025. Any written recommendations must include Docket ID No. EPA-HQ-OW-2025-0093. For more instructions on submitting written recommendations, see Federal Register - WOTUS Notice. 

The agencies will hold at least six listening sessions, with two open to all stakeholders, one open to States, one open to Tribes, one open to industry and agricultural stakeholders, and one open to environmental and conservational stakeholders. The sector-specific listening sessions have been announced and will be held from April 29 to May 1. The public listening sessions have not yet been announced but are anticipated to be in May. For more details on these listening sessions, see EPA Stakeholder Engagement Activities.