EPA's Landmark WOTUS Proposal And The Mandate Of Sackett v. EPA

EPA Proposes Historic WOTUS Rule—A Major Victory for Predictability, Cost Savings, and Development Efficiency, Driven by the Supreme Court's Sackett Ruling

On November 20, 2025, the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers published a Proposed Rule (Document 90 FR 52498) to redefine the "Waters of the United States" (WOTUS) in response to the U.S. Supreme Court's landmark 2023 ruling in Sackett v. EPA, which fundamentally reshaped the landscape of federal water regulation.

The Sackett case was a critical turning point that delivered a significant victory to property owners and developers. The Supreme Court, in its majority opinion, explicitly rejected the decades-long, confusing "significant nexus" test that had been the primary basis for federal jurisdiction over many waters and wetlands since the 2006 Rapanos decision. The Court found that this test was too vague, exceeded the statutory bounds of the Clean Water Act (CWA), and subjected "a staggering array of landowners" to potential criminal and civil penalties for ordinary activities.

The Sackett decision established a clear, two-part test for jurisdiction over wetlands. First, the adjacent body of water must itself constitute "waters of the United States" (i.e., a relatively permanent body of water connected to traditional navigable waters). Second, the wetland must have a continuous surface connection to that water, making it "as a practical matter indistinguishable" from the covered water. The new proposal is designed to implement this strict, restrictive mandate.

The Fundamental Shift: Codifying the Sackett Test

The new WOTUS proposal eliminates the vague "significant nexus" standard. In its place, the proposal establishes clear, discernible boundaries based on the Sackett decision. Federal oversight under the CWA will now be strictly limited to a narrow and clearly defined set of waters:

1. Traditional Navigable Waters (Tidal and Non-Tidal).
2. Relatively Permanent Tributaries that contribute surface water flow to those traditional navigable waters.
3. Wetlands that directly abut—meaning they share a physical, continuous surface connection with—the waters described in categories 1 and 2.

Clarity is Cost Savings: New Definitions for Predictable Permitting

The proposal also introduces precise regulatory definitions for the first time, ensuring clarity and adherence to the Sackett mandate:

• "Relatively Permanent": This term ensures that streams and rivers are only considered jurisdictional if they maintain continuous flow or flow during recurring, substantial periods of the year (specifically, during the defined wet season), effectively excluding ephemeral streams that flow only in response to precipitation events.
• "Continuous Surface Connection": This codified definition operationalizes the Sackett test for wetlands. To be federally regulated, a wetland must satisfy a rigorous two-part test: it must abut a jurisdictional water and it must exhibit surface water at least during the wet season. This high standard significantly curtails the regulation of geographically isolated wetlands.

Expanded Exclusions: Streamlining Project Approvals

The new proposed rule further simplifies project approvals by formalizing several key regulatory exclusions, providing immediate relief and cost savings for developers. Significantly, the proposal eliminates interstate waters as an independent basis for federal jurisdiction, meaning a water body must now independently meet the criteria for being "relatively permanent" or "navigable" regardless of whether it crosses a state line. An explicit exclusion for groundwater has also been added, confirming its non-jurisdictional status under the CWA. Furthermore, the rule clarifies and revises the exclusion for many man-made features, specifically ditches that are built wholly in dry land. Additional regulatory certainty is provided by maintaining the exclusion for prior converted cropland and revising the exclusion for waste treatment systems, further minimizing compliance burdens. These clear, defined exclusions are central to reducing the number of projects requiring federal permits, thereby streamlining approvals and lowering costs.

Path Forward

The potential implications for developers are positive: reduced compliance burdens, fewer federal permits required, significantly reduced legal risk, and substantial cost savings. This rule is a victory for predictability and property rights, driven by the Supreme Court's insistence on limiting federal authority to waters clearly defined as "waters of the United States" in their own right.

Public meetings will be held in Bismarck, North Dakota (December 12) and Pittsburgh, Pennsylvania (December 15), as well as virtually (December 16) to gather input on the proposed rule, and the public comment period closes on January 5, 2026 (see https://www.epa.gov/wotus/public-outreach-and-stakeholder-engagement-activities). We are advising clients to review all current and planned projects to assess which sites may fall outside of federal jurisdiction upon adoption of the proposed rule and offering assistance with related comments for submission by January 5.

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