EPA Seeks to Implement Sackett v EPA in Proposed WOTUS Rule

The phrase “waters of the United States” sounds simple enough until you try to apply it to a roadside ditch, a farm field after spring rain, a wetland beside a creek, or a pond that behaves like a lake only when the weather is feeling dramatic. That is why WOTUS has become one of the most argued-over terms in American environmental law. Now, the Environmental Protection Agency and the U.S. Army Corps of Engineers are trying again to define itthis time through a proposed WOTUS rule designed to implement the Supreme Court’s decision in Sackett v. EPA.

The proposal aims to bring the Clean Water Act closer to the Court’s 2023 ruling, which narrowed federal authority over wetlands and emphasized two key ideas: “relatively permanent” waters and a “continuous surface connection” between protected wetlands and jurisdictional waters. In plain English, the agencies are trying to answer a question that has haunted regulators, landowners, farmers, developers, environmental groups, and lawyers for years: when does wet land become federally protected water?

This proposed rule is not just a legal cleanup job. It could affect permitting, farming operations, infrastructure projects, housing development, conservation planning, state water programs, and the daily work of consultants who spend their careers walking through mud with maps, probes, and a heroic tolerance for mosquitoes.

What Is WOTUS and Why Does It Matter?

WOTUS stands for “waters of the United States,” a term used in the Clean Water Act to determine which waters fall under federal jurisdiction. If a stream, wetland, lake, pond, tributary, or other aquatic feature is considered WOTUS, then federal Clean Water Act programs may apply. That can include permits for discharging pollutants, placing dredged or fill material, managing oil spill prevention, applying water quality standards, and coordinating state water quality certification.

In practice, WOTUS decides whether a project needs a federal permit before dirt is moved, wetlands are filled, pipes are installed, or development plans go from “great idea” to “please call the environmental consultant.” For farmers, it may influence how drainage ditches, prior converted cropland, and seasonal wet areas are treated. For developers, it can affect timelines and project costs. For environmental advocates, it determines whether important wetlands and streams receive federal safeguards.

The stakes are high because the Clean Water Act is built on cooperative federalism. The federal government protects navigable waters and related resources, while states and tribes retain authority over many land and water resources within their borders. The hard part is drawing the line without turning every puddle into a federal caseor leaving important wetlands without meaningful protection.

The Sackett v EPA Decision: The Rulemaking Earthquake

The proposed WOTUS rule exists because of the Supreme Court’s 2023 decision in Sackett v. Environmental Protection Agency. The case involved Michael and Chantell Sackett, Idaho landowners who wanted to build on property near Priest Lake. EPA had treated the property as containing federally regulated wetlands. The dispute eventually reached the Supreme Court, where the justices agreed that the government had gone too far in asserting jurisdiction over the Sacketts’ land.

The Court rejected the broader “significant nexus” approach that had allowed federal jurisdiction over wetlands and waters based on ecological connections to navigable waters. Instead, the majority adopted a narrower test. Under Sackett, a wetland is covered by the Clean Water Act only when it has a continuous surface connection to a relatively permanent body of water that is itself a water of the United States, making it difficult to determine where the water ends and the wetland begins.

That standard changed the conversation immediately. Before Sackett, regulators often evaluated whether wetlands significantly affected the chemical, physical, or biological integrity of downstream navigable waters. After Sackett, the focus shifted toward visible, physical, surface-water connections. The Court essentially told agencies: stop stretching the definition like a pair of sweatpants after Thanksgiving dinner.

What the EPA and Army Corps Are Proposing

The EPA and Army Corps announced the proposed rule in November 2025, with publication in the Federal Register shortly afterward. The proposal seeks to revise the amended 2023 WOTUS rule and more fully implement Sackett. The agencies say the goal is greater regulatory certainty, more predictable Clean Water Act implementation, and clearer boundaries between federal jurisdiction and state or tribal authority.

Key proposed jurisdictional categories

Under the proposed rule, WOTUS would generally include traditional navigable waters and territorial seas, most impoundments of jurisdictional waters, relatively permanent tributaries, certain adjacent wetlands, and certain lakes and ponds that meet the proposed connection requirements. The proposal is designed to narrow federal jurisdiction compared with broader regulatory approaches used before Sackett.

One of the most important changes is the proposed deletion of the separate interstate waters category. In previous regulatory frameworks, interstate waters could be jurisdictional because they crossed state lines. The new proposal would require a waterbody to satisfy the jurisdictional definition on its own rather than relying only on its interstate character.

New definitions for key terms

The proposal would add or revise definitions for several terms that have caused real-world confusion. These include “continuous surface connection,” “relatively permanent,” “tributary,” “ditch,” “prior converted cropland,” and “waste treatment system.” This may sound like a glossary update, but in environmental law, definitions are where the magicand the lawsuitslive.

“Continuous surface connection” is especially important for wetlands. The proposed definition focuses on wetlands that abut, or touch, a jurisdictional water and have surface water at least during the wet season. This means wetlands separated from jurisdictional waters by uplands, berms, barriers, or other interruptions may be less likely to qualify as federally regulated wetlands.

“Relatively permanent” is another major term. The proposed rule uses it to separate waters with more lasting flow or presence from features that flow only briefly after storms. That distinction matters for tributaries, lakes, ponds, and wetlands connected to those waters. A channel that carries water only during a thunderstorm may not be treated the same way as a stream that flows through the wet season.

What Waters and Features Would Be Excluded?

The proposed rule also includes several exclusions. These are important because exclusions give landowners, farmers, builders, utilities, and regulators a clearer idea of what is not federally regulated under WOTUS.

Groundwater

The proposal would expressly exclude groundwater, including groundwater drained through subsurface drainage systems. This matters in agricultural areas where tile drainage and subsurface water movement are common. EPA has long stated that groundwater is not itself WOTUS, even though pollutants that travel through groundwater may still raise separate legal questions under other Clean Water Act doctrines.

Ditches

The proposed rule would exclude ditches, including roadside ditches, constructed or excavated entirely in dry land. This is a major issue for farmers, counties, transportation departments, and developers because ditches can look suspiciously water-like when it rains. The proposal attempts to clarify when a ditch is merely a man-made drainage feature and when it may function as part of a jurisdictional water system.

Prior converted cropland

The proposal would continue the exclusion for prior converted cropland, a longstanding concept tied to land that was drained or altered for agricultural use before certain regulatory deadlines. The rule also addresses abandonment, agricultural use, and how agencies may evaluate whether wetland conditions have returned. For farmers, this is one of the most watched parts of the proposal because it affects whether land used for agriculture remains outside federal wetlands jurisdiction.

Waste treatment systems

Waste treatment systems would also remain excluded when they are designed to meet Clean Water Act requirements. This can include lagoons, settling ponds, cooling ponds, and other treatment-related components. The purpose is to avoid treating regulated treatment infrastructure as the same thing as natural jurisdictional waters.

Why the Proposed WOTUS Rule Matters for Farmers

Farmers have been among the loudest voices in the WOTUS debate for years, and not because they needed a new hobby. Agricultural operations often include ditches, drainage systems, low spots, ponds, seasonal flows, and fields that can look like wetlands in one season and dusty parking lots in another. When federal jurisdiction is unclear, farmers may face delays, consultant costs, permitting uncertainty, and enforcement anxiety.

Supporters of the proposed rule argue that it gives farmers clearer boundaries. If a drainage ditch was built in dry land, if groundwater is excluded, and if prior converted cropland is more clearly protected from federal jurisdiction, farmers may have more confidence making routine land-use decisions. The proposal also aligns with the idea that states should manage many local water resources that fall outside the Clean Water Act’s federal reach.

Critics, however, worry that narrowing federal jurisdiction could leave wetlands and streams vulnerable, especially in states with weaker water protections. A wetland that does not meet the continuous surface connection test may still filter pollutants, reduce flooding, store carbon, recharge groundwater, and provide habitat. In other words, a wetland may fail a legal test while still doing wetland things. Nature, inconveniently, did not draft itself around federal regulations.

How Developers and Infrastructure Projects Could Be Affected

For developers, builders, utilities, energy companies, and transportation agencies, the proposed WOTUS rule could reduce the number of projects requiring federal Clean Water Act permits. The agencies have stated that the rule is expected to reduce the scope of jurisdiction compared with the amended 2023 rule, especially for wetlands and certain tributaries.

That could mean fewer Section 404 permits for dredged or fill material, fewer mitigation requirements, and shorter timelines for some projects. However, “fewer federal permits” does not mean “no rules.” State wetlands laws, local floodplain ordinances, stormwater rules, endangered species requirements, and private conservation restrictions may still apply. Anyone who treats WOTUS as a magic permission slip may soon meet a state regulator holding a clipboard.

The proposal may also increase the importance of jurisdictional determinations. Landowners and project proponents may request approved jurisdictional determinations from the Corps to confirm whether aquatic features are federally regulated. Under the proposed approach, agencies would need to document the basis for jurisdiction, and if adequate information does not show that a feature meets the standard, it may be found non-jurisdictional.

Environmental Concerns: What Could Be Lost?

Environmental groups and some state officials have warned that a narrower WOTUS definition could reduce federal protections for wetlands and streams that provide public benefits. Wetlands are not just soggy inconveniences standing between a developer and a ribbon-cutting ceremony. They can reduce flood risk, improve water quality, support wildlife, and help buffer communities from extreme weather.

The concern is that many wetlands lacking a direct surface-water connection may still influence downstream waters through subsurface flow, seasonal saturation, flood storage, or biological connections. The Sackett ruling, however, placed legal weight on a narrower physical connection. The proposed rule follows that direction by focusing on relatively permanent waters and continuous surface connections.

This creates a policy tradeoff. Clearer limits may reduce uncertainty for regulated parties, but they may also shift more responsibility to states and tribes. Some states have robust wetlands programs. Others do not. As a result, water protection may become more uneven across the country, with geography playing a larger role in whether a wetland receives protection.

The State and Tribal Role After Sackett

One of the most important parts of the proposed rule is its emphasis on state and tribal authority. The Clean Water Act does not prevent states or tribes from protecting waters beyond the federal WOTUS definition. In fact, the proposed rule repeatedly points to state and tribal authority as part of the cooperative federalism structure.

But that shift is complicated. States with strong programs may fill regulatory gaps left by a narrower federal rule. States with limited resources or narrower statutes may not. Tribes may face unique challenges because the federal government often implements Clean Water Act programs on tribal lands, and not all eligible tribes have treatment-as-a-state authority to administer their own programs.

In practical terms, the proposed WOTUS rule may not end the debate. It may move part of the debate from Washington, D.C., to state legislatures, tribal governments, county planning boards, and local permitting offices. The national rule may become narrower, but water still flows downhilland regulatory questions tend to follow.

Will the Proposed Rule Create Certainty?

The agencies describe the proposal as an effort to provide durability, predictability, and consistency. That is the holy trinity of WOTUS rulemaking, and every administration seems to promise it before the next lawsuit arrives wearing muddy boots.

The proposal does add clearer definitions, and that may help. Terms like “continuous surface connection,” “relatively permanent,” and “ditch” are more concrete than open-ended ecological standards. The rule also responds directly to the Supreme Court’s language in Sackett, which may strengthen its legal footing.

Still, uncertainty will not vanish. Field conditions are messy. A wetland may touch a stream in spring but not late summer. A culvert may interrupt surface flow. A tributary may flow continuously in wet years and only seasonally in dry years. A ditch may start as a man-made feature and later behave like a stream. These are not law school hypotheticals; they are Tuesday morning for wetland consultants.

Specific Examples of How the Rule Could Work

Example 1: A wetland directly touching a perennial stream

Suppose a wetland directly abuts a stream that flows continuously through the wet season and is connected downstream to a traditional navigable river. If there is surface water connection during the wet season and no clear break between the wetland and the stream, the wetland is more likely to be jurisdictional under the proposed rule.

Example 2: A wetland separated by a berm

Now imagine a wetland near a jurisdictional stream but separated by an upland berm. Even if the wetland is ecologically connected through groundwater or occasional flooding, it may not meet the proposed continuous surface connection standard. That could place it outside federal WOTUS jurisdiction, although state law may still protect it.

Example 3: A roadside ditch dug in dry land

A roadside ditch constructed entirely in dry land to move stormwater may be excluded under the proposed rule. But if a ditch functions as a relatively permanent tributary connected to downstream jurisdictional waters, the analysis may become more complicated.

Example 4: Prior converted cropland returning to wetland conditions

A field historically converted for farming may remain excluded as prior converted cropland. However, if agricultural use is abandoned and wetland conditions return, regulators may evaluate whether the exclusion still applies. Even then, the wetland would still need to meet the proposed jurisdictional connection test to become WOTUS.

Practical Experiences and Lessons From the WOTUS Debate

Anyone who has followed WOTUS for more than five minutes knows that the legal definition is only half the battle. The other half happens in fields, on construction sites, at kitchen tables, in county offices, and during tense conference calls where everyone says “jurisdictional determination” like it is a completely normal phrase to use before lunch.

One practical lesson is that maps are helpful, but they are not destiny. A national wetlands inventory map, soil survey, aerial photo, or LiDAR layer can suggest where water features may exist, but field conditions still matter. A parcel that looks dry in August may show wetland indicators in April. A swale that appears minor on a map may carry meaningful flow after snowmelt. Under the proposed WOTUS rule, documenting surface water, flow timing, physical connection, and wet-season conditions will likely become even more important.

Another experience from past WOTUS changes is that regulatory uncertainty creates real costs even before a permit is required. Landowners may pay consultants just to learn whether they need to pay more consultants. Developers may delay site design while waiting for a jurisdictional determination. Farmers may avoid ordinary improvements because they are unsure whether a low area is regulated. Environmental groups may spend resources tracking state-level gaps. Clarity matters because uncertainty itself becomes a kind of tax.

At the same time, overly narrow rules can create practical problems downstream. A wetland may not have a continuous surface connection every day of the year, but it may still reduce flooding, trap sediment, and slow polluted runoff. Communities often discover the value of wetlands after they are gone, usually when water shows up somewhere inconvenient, like a basement, road, or newly built subdivision named “Heron Preserve” with no herons and very little preserving.

For businesses, the smartest approach is not to assume the proposed rule automatically removes all risk. A feature may fall outside federal WOTUS jurisdiction but remain protected by state law, local ordinance, conservation easement, stormwater regulation, or lender requirements. Many large infrastructure and energy projects also face public scrutiny, and “not federally jurisdictional” is not always the same as “politically painless.”

For regulators, the experience of WOTUS rulemaking shows that simplicity is harder than it sounds. A rule must be clear enough for landowners, defensible enough for courts, flexible enough for varied landscapes, and protective enough to serve the Clean Water Act’s goals. That is like asking one umbrella to cover a family reunion during a hurricane.

For states and tribes, the proposal underscores the need to review their own water laws. If federal jurisdiction narrows, local governments may face pressure either to expand state protections or accept reduced oversight. Some states may welcome the flexibility. Others may worry about unfunded administrative burdens. Tribal governments may face especially difficult questions where federal implementation has historically played a larger role.

For the public, the biggest lesson is that clean water policy is not abstract. It shapes where homes are built, how farms drain fields, how roads cross streams, how wetlands absorb floodwater, and how communities protect drinking water sources. WOTUS may sound like a bureaucratic acronym that escaped from a filing cabinet, but it influences real landscapes and real costs.

The proposed rule implementing Sackett v. EPA is therefore more than a legal adjustment. It is a new chapter in a long-running national argument about water, land, property rights, federal power, and environmental protection. Whether it becomes the durable solution the agencies wantor another stop on the WOTUS roller coasterwill depend on final regulatory language, court review, state responses, and the messy reality of water refusing to behave like a neat legal category.

Conclusion

The EPA’s proposed WOTUS rule is an attempt to translate the Supreme Court’s Sackett v. EPA decision into workable Clean Water Act regulations. It narrows the focus to relatively permanent waters, continuous surface connections, and clearer exclusions for features such as groundwater, certain ditches, prior converted cropland, and waste treatment systems. Supporters see long-awaited clarity for farmers, builders, landowners, and industry. Critics warn that wetlands and streams outside federal jurisdiction may lose important protections, especially in states without strong water laws.

The real test will come after public comments, final rulemaking, and inevitable legal challenges. For now, one thing is clear: WOTUS remains one of the most importantand most stubbornterms in American environmental law. It may be only five letters, but it carries the weight of rivers, wetlands, farms, homes, permits, lawsuits, and a whole lot of muddy boots.