What: On November 20, 2025, the U.S. Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (Corps) proposed a revised definition of “waters of the United States” (WOTUS).
Why: WOTUS is used as a guide to determine which water bodies the federal government can regulate under the Clean Water Act (CWA). The revised WOTUS definition aims to bring both the EPA and Corps regulations in line with the Supreme Court’s 2023 decision in Sackett v. EPA and provide clarity on the CWA’s regulatory scope.
Key elements of the proposed rule include:
- Defining terms such as “relatively permanent,” “continuous surface connection,” and “tributary.”
- Establishing that jurisdictional tributaries must connect to traditional navigable waters either directly or through other features that provide predictable and consistent flow.
- Reaffirming that wetlands must be indistinguishable from jurisdictional waters through a continuous surface connection, which means that they must touch jurisdictional water and hold surface water for a requisite duration year after year.
- Preserving and clarifying exclusions for certain ditches, prior converted cropland, and waste treatment systems.
- Adding a new exclusion for groundwater.
- Incorporating locally familiar terminology, such as “wet season,” to help determine whether a water body qualifies as WOTUS.
The EPA also announced it will hold two hybrid public meetings on the proposed rule. Information about these meetings is forthcoming.
Advocacy previously filed comments with the EPA in April when the agency was seeking input on this proposal. Advocacy specifically noted that small businesses “want WOTUS regulations that do not require them to hire attorneys or consultants to understand.”
Action: Comments are due January 5, 2026.
2023 SUPREME COURT DECISION:
(PDF, 467 KB)
ADVOCACY’S APRIL 2025 COMMENTS:
Advocacy Calls for Increased Small Business Role in WOTUS Discussion
FEDERAL REGISTER NOTICE:
Updated Definition of “Waters of the United States”
CONTACT:
Nick Goldstein
EMAIL:
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