On November 17, 2025, the Environmental Protection Agency and Corps of Engineers announced a proposed rule redefining “waters of the United States” (WOTUS) under the Clean Water Act (CWA). The proposal aims to align the agencies’ CWA regulations with the Supreme Court’s decision in Sackett v. EPA, 598 U.S. 651 (2023), which limited federal regulation to “relatively permanent” waters with a “continuous surface connection” to traditional navigable waters and “adjacent” wetlands actually abutting those waters.

The proposal would define key terms from the Sackett decision:

• “Relatively permanent” is proposed to mean waterbodies with standing or flowing water throughout the entirety of the region’s “wet season,” a period to be determined using specified tools that account for regional differences and hydrologic variability across the country.
• “Continuous surface connection” would mean abutting (i.e., “touching”) a jurisdictional water and having surface water at least during the wet season.

Importantly, waterbodies that flow only intermittently or in response to rain events—or that flow for only a portion of the wet season—would not be subject to regulation.

The proposal includes other significant changes as well, particularly when it comes to wetlands:

• Wetlands would need to be “indistinguishable” from jurisdictional waters, meaning they must physically touch a covered waterbody and retain surface water for a defined period each year.
• Only the parts of a wetland that touch a jurisdictional water and have surface water during the wet season would be regulated under federal law—no matter how large the total wetland area might be.
• In “wetland mosaics”—that is, groups of nearby wetlands—jurisdiction would be asserted only over individual wetlands that have a continuous surface connection to jurisdictional waters.

Finally, the proposal would codify exemptions for groundwater, wastewater treatment systems, and ditches constructed entirely in uplands, making clear these features are not jurisdictional under the CWA.

If finalized, the proposed changes would have significant implications for landowners, developers, and agricultural producers. The rule is intended both to reduce coverage, allowing significantly more land to be developed without federal permit or mitigation requirements, and to simplify the process of determining when federal permits are required. It remains to be seen if the latter effort will succeed.

The official version of the proposal will be published in the federal register November 20, 2025, triggering a 45-day public comment period. The agencies are considering numerous alternatives and many key issues remain to be decided. Affected stakeholders are encouraged to submit comments, which the agencies will review before issuing a final rule.

If you have questions about how these proposals could affect your projects or businesses, please contact Lewis Jones or John Fortuna.