The WOTUS Rule has long been a point of regulatory uncertainty for stakeholders ranging from energy and industrial operators to agricultural producers and real estate developers due to the complexity of determining which waterways fall under federal jurisdiction. The Supreme Court’s 2023 decision in Sackett v. EPA significantly narrowed the scope of federal authority by holding that only relatively permanent, standing, or continuously flowing water bodies such as streams, rivers, oceans, and lakes fall under the Clean Water Act. Furthermore, the Court determined that wetlands are only covered if they have a continuous surface connection to such waters, making it difficult to discern where the water ends and the wetland begins.
In response, EPA will initiate a rulemaking process to revise the 2023 WOTUS definition to align with the Sackett decision. According to the agency, the goal is to balance the protection of navigable waters from pollution with the need to streamline permitting processes and reduce regulatory burdens for businesses operating within the United States.
As part of this effort, the EPA and USACE released a joint memorandum providing immediate guidance to field personnel on implementing the “continuous surface connection” requirement for wetlands and other adjacent water bodies. The memorandum acknowledges the challenges of determining jurisdiction during droughts, low tides, or temporary disruptions in surface connection, indicating that these scenarios will be evaluated case-by-case with the possibility of further regulatory clarification.
In addition to internal guidance, the agencies submitted a joint notice to the Federal Register, soliciting public input on three key issues:
At least six listening sessions will be held between late March and April 2025, both virtually and in-person. These sessions will cater to a range of stakeholders including state and tribal governments, industry and agricultural representatives, and environmental groups. All sessions will be recorded and accessible via EPA’s website, along with registration details and opportunities to submit written comments.
The planned revision has significant implications for businesses involved in construction, energy, agriculture, and land development. By clarifying federal water jurisdiction, the rule aims to reduce compliance risks, lower permitting expenses, and improve operational efficiency, particularly for projects located near wetlands or seasonal waterways. However, businesses are advised to stay engaged in the rulemaking process to ensure their interests are represented and to prepare for potential changes in permitting timelines or requirements.
