On November 17, 2025, the United States Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (USACE) issued a news release announcing the most recent attempt to define waters of the United States (WOTUS).
The issue of what is and is not a water of the US has eluded definition for decades. It is a serious question with serious consequences for land developers and farmers in particular.
Codifying Sackett
Dusting off our blog on October 18, 2022, we discussed Sackett v. EPA, the most recent WOTUS case before the Supreme Court of the United States (SCOTUS). In that blog, we shared some of the exchange between the Justices and the attorneys, including this:
“So, if the federal government doesn’t know (what a regulated water is), how is a person subject to criminal time in federal prison supposed to know?” – Excerpt from Justice Gorsuch responding to the attorney for the USEPA
Michael and Chantell Sackett began development on a parcel of land (near Priest Lake, Idaho) for their home in 2007, when the EPA and USACE said the property contained wetlands subject to the Clean Water Act (CWA). This began a series of legal battles. The SCOTUS hearing, in which the Sacketts prevailed, was in the fall of 2022. The Pacific Legal Foundation provides a detailed chronology of events in a 2022 post.
Ultimately, the November 2025 proposed rule is an attempt to codify the Sackett v. EPA ruling of a two-part test for determining whether wetlands have a continuous surface connection and a surface connection in the wet season.
Ultimately, the November 2025 proposed WOTUS rule is an attempt to codify the Sackett v. EPA ruling’s two-part test for determining whether wetlands have a continuous surface connection and a surface connection in the wet season (Photo by clement fusil on Unsplash).
Key Proposed WOTUS Revisions
The recently announced Durable WOTUS Proposal provides the following summary of the aim of the proposed rule and the key proposed revisions.
- Defining key terms like “relatively permanent,” “continuous surface connection,” and “tributary” to appropriately delineate the scope of WOTUS consistent with the Clean Water Act and Supreme Court precedent;
- 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 a jurisdictional water and hold surface water for a requisite duration year after year;
- Strengthening state and tribal decision-making authority by providing clear regulatory guidelines while recognizing their expertise in local land and water resources;
- Preserving and clarifying exclusions for certain ditches, prior converted cropland, and waste treatment systems; Adding a new exclusion for groundwater; and
- Incorporating locally familiar terminology, such as “wet season,” to help determine whether a water body qualifies as WOTUS;
- In addition, the limitation to wetlands that have surface water, at least during the wet season, and abut a jurisdictional water will further limit the scope of permafrost wetlands that are considered to have a continuous surface connection under the proposed rule. These proposed changes are intended to provide clarity and consistency to the continuous surface connection definition.
Defining WOTUS Terms
Throughout the long struggle to define what is and, as importantly, what is not a WOTUS has rested on definitions. Below are some of the proposed definitions in the Federal Register.
In the proposed rule, the agencies (EPA and USACE) are not proposing to revise the definition of ‘‘adjacent,’’ which means ‘‘having a continuous surface connection.’’ Under the proposed rule, adjacent wetlands and relatively permanent lakes and ponds must have a continuous surface connection to a water of the United States to be jurisdictional.
The agencies would define ‘‘continuous surface connection’’ for the first time to mean ‘‘having surface water at least during the wet season and abutting (i.e., touching) a jurisdictional water.’’
The agencies’ proposed definition of ‘‘continuous surface connection’’ provides a two-prong test that requires both (1) abutment of a jurisdictional water and (2) having surface water at least during the wet season.
The phrase ‘‘abutting’’ would be implemented consistent with the March 2025 Continuous Surface Connection Guidance to mean ‘‘touching.’’
In this proposal, the agencies define ‘‘relatively permanent’’ to mean ‘‘standing or continuously flowing bodies of surface water that are standing or continuously flowing year-round or at least during the wet season.’’
The term, wet season, is not defined in the federal register notice.
Farm Bureau Comment
The nearly 50-page proposed rule has more definitions to digest, including “ditches,” which are important for farmers. To that end, Courtney Briggs, Senior Director of Government Affairs, American Farm Bureau, said that the EPA “must exempt all ditches but especially upland ditches that convey water off a farm field” (Inside EPA).
The announcement states that the EPA and USACE have “announced a proposed rule that would establish a clear, durable, common-sense definition of ‘waters of the United States’ (WOTUS) under the Clean Water Act.”
You have an opportunity to weigh in on how clear and durable this latest effort is. The rule is open for public comment until January 5, 2026.
Environmental Advice
Dragun Corporation has assisted the regulated community with environmental compliance, assessment/remediation, and litigation support since 1988. If you need assistance with an environmental issue, contact Jeffrey Bolin, M.S., CHMM, at 248-932-0228, Ext. 125.
Alan Hahn drafted this blog. Alan has an undergraduate degree in Environmental Studies and completed a graduate program in Environmental Management. He has worked in environmental management for more than 45 years. He has written hundreds of blogs and articles. His published work includes Michigan Lawyers Weekly, Detroiter, Michigan Forward, GreenStone Partners, Manure Manager Magazine, Progressive Dairy, and HazMat Magazine.
Jeffrey Bolin, M.S., reviewed this blog. Jeff is a partner and senior scientist at Dragun Corporation. He is a published author, a frequent speaker, and an expert witness. His expertise in environmental due diligence, PFAS, vapor intrusion, and site assessments has led to projects in the US, Canada, and overseas. See Jeff’s Bio.
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