On November 17, 2025 the Environmental Protection Agency (EPA) and the Department of the Army announced proposed changes to the definition of Waters of the United States (WOTUS). The proposed rule is intended to be in line with the Supreme Court’s Sackett decision and is expected to significantly limit current federal jurisdiction over wetlands and streams.
Several notable changes include definitions of “relatively permanent” water bodies and “continuous surface connection” that were laid out in the Sackett decision.
- Definition of “relatively permanent” – The proposed definition would only include waters that flow during the “wet season”. This definition reinforces the Rapanos Supreme Court language and excludes all ephemeral streams and would likely exclude many intermittent streams.
- The term “tributary” only regulates bodies of water with relatively permanent flow and bed and banks that connect to a downstream traditional navigable water either directly or through one or more waters or features that convey relatively permanent flow.
- Definition of “continuous surface connection” – The proposed definition would require wetlands to both abut a jurisdictional water and have surface water during the aforementioned wet season.
- The regulation also proposes to exempt from regulation “ditches (including roadside ditches) constructed or excavated entirely in dry land.”
- The definition of “prior converted cropland” has been updated so that such farmland only loses its designation if it is abandoned once in a five year period and “has reverted to wetlands”.
- Several other smaller changes in the regulations are also proposed such as clarifying that groundwater is not considered WOTUS, and a refinement in what constitutes “excluded waste treatment systems”.
Example: Lower coastal plain stream.
Taken together the regulation, as proposed, will limit jurisdiction to those waterways with relatively permanent flow, connected to traditional navigable waters (and territorial seas) by waterbodies that also “convey relatively permanent flow.” The proposed regulation specifies that “a tributary does not include a body of water that contributes surface water flow to a downstream jurisdictional water through a feature such as a channelized non-jurisdictional surface water feature, subterranean river, culvert, dam, tunnel or similar artificial feature, or through a debris pile, boulder field, wetland, or similar natural feature, if such feature does not convey relatively permanent flow” (emphasis added). Wetlands are only regulated if touching such regulated waterbodies and have “continuous surface connection” as noted above.
Example: Stream during “wet season”.
While we expect the revised definition to significantly limit the federal jurisdiction of streams and wetlands, the implementation of the proposed rule in the field could prove difficult. The “wet season” varies geographically and could require extended observations to prove whether a stream or wetland has water during the full “wet season”. Additionally, large wetland systems that have both surface inundation (ponding) and subsurface saturation would need to be further broken out in the field to determine which portions of a wetland fall under federal jurisdiction’s “continuous surface connection”. For contentious or controversial projects this could lead to significant delays and could be ripe for legal challenges.
For states with their own wetland regulations, features that are no longer jurisdictional at the federal level will remain jurisdictional at the state level. In Virginia, all state surface waters are regulated regardless of their flow regime or connection to other wetlands and streams. In Maryland, all wetlands and streams are regulated with the exception of ephemeral streams.
Once the proposed rule is published in the Federal Register, a 45-day public comment period will open. We expect that a final rule would be published in early to mid-2026.
WSSI Can Help
Have questions about how the proposed rule could affect your project? We’re here to help you navigate these waters!
Resources
- Updated Definition of “Waters of the United States”, pre-publication notice, November 17, 2025
- EPA Fact Sheet – 2025 Proposed “Waters of the United States” (WOTUS) Rule, November 17, 2025
- Out With the Old, In With the New: Clarifying WOTUS Definition and Upcoming Stakeholder Sessions (Field Notes, March 17, 2025)
- Sackett Opinion Clarifies and Restricts Federal Wetland Regulations (Field Notes, October 9, 2023)
- The Latest Revision to the WOTUS Rule – Regarding Sackett et ux. v. USEPA (Field Notes, September 3, 2023)