Publication
Federal Agencies to Revise Waters of the United States Rule
The Waters of the United States (WOTUS) Rule is an ongoing conundrum to all those subject to it, most especially in trying to ascertain exactly which water ways qualify under the Rule. The U.S. Environmental Protection Agency (USEPA) announced on March 12, 2025, that it would work with the U.S. Army Corp of Engineers (USACE) to expeditiously revise the WOTUS Rule, specifically by clarifying the definition of WOTUS. The goal of the two agencies, according to the announcement, is to ensure that the revised definition follows the law, protects navigable waters from pollution, while also streamlining permitting and associated costs, and reduces expenses for businesses operating domestically.
The USEPA announcement confirms that USEPA will be initiating a rulemaking process to review and revise the 2023 WOTUS definition, using as guidance the decision issued by the Supreme Court of the United States in Sackett v. Environmental Protection Agency. As the USEPA announcement specifies, that decision “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.”
In conjunction with this announcement, USEPA gave notice of the release of a joint memorandum between the U.S. Department of the Army, USACE, and the USEPA, issued to field personnel providing guidance on the proper implementation of the ‘continuous surface connection’ requirement of the WOTUS definition; and a joint notice submitted to the Federal Register for publication announcing public listening sessions and request for stakeholder input on “certain key topics related to the implementation of the definition of [WOTUS] in light of the Supreme Court’s 2023 decision in Sackett v. Environmental Protection Agency.”
The memorandum, which is effective immediately, directs the agencies’ field personnel specifically on the proper implementation of the definition of WOTUS as it applies to “adjacent wetlands” and the “continuous surface connection” requirement:
“In summary, the Supreme Court in Sackett provided a clear two-part test for determining CWA jurisdiction over adjacent wetlands. First, the adjacent body of water must be a “water of the United States,” which generally means traditional navigable waters, or a relatively permanent body of water connected to a traditional navigable water. Second, the wetland, assuming it satisfies the agencies’ longstanding regulatory definition of “wetlands” at 33 C.F.R. 328.3 and 40 C.F.R. 120.2, must have a continuous surface connection to a requisite covered water making it difficult to determine where the water ends and wetland begins. The Sackett Court recognized that there may be some instances where that line drawing problem is difficult, such as during periods of drought or low tide or in those instances where there may be temporary interruptions in surface connection. The agencies will work to resolve these scenarios on a case-by-case basis and provide further clarity when appropriate to guide future implementation.“
The joint notice announcing the stakeholder opportunities to assist with further clarifying the definition of WOTUS, is requesting input on the scope of the following specific issues:
- “Relatively permanent” waters and to what features this phrase applies;
- “Continuous surface connection” and to which features this phrase applies; and
- Jurisdictional ditches
There will be at least six listening sessions scheduled for late March-April 2025 that will be held online and in-person. Two of those sessions will be open to all stakeholders, one will be for the States only, one will be solely for the Tribes, one will be specifically for industry and agricultural stakeholders, and one will be only for environmental and conservational stakeholders. However, all listening sessions will be recorded and available to view on the USEPA’s website, which is the same site that will provide all of the dates and registration information for those sessions.
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