On March 24, 2025, the Environmental Protection Agency (EPA) published plans to seek stakeholder input on implementing a new definition of “waters of the United States” (WOTUS) under the Clean Water Act (CWA). The EPA’s goal is to align its WOTUS implementation with the Supreme Court's 2023 decision, Sackett v. Environmental Protection Agency.
Specifically, EPA is requesting feedback on:
- The scope and application of “relatively permanent” waters
- The scope and application of “continuous surface connection”
- The scope of jurisdictional ditches
The EPA has opened a 30 day comment period and will host stakeholder listening sessions beginning in April through May 2025. Written comments are due by April 23, 2025, and listening session registration instructions and dates are forthcoming.
In tandem with this notice, EPA issued new implementation guidance clarifying what wetlands qualify as a jurisdictional WOTUS. This update narrows the Biden-era definition to better align with Sackett v. Environmental Protection Agency, which held that the CWA covers only wetlands with a “continuous surface connection” to jurisdictional water. The new guidance establishes a two-part test for qualifying as WOTUS: first, the adjacent water must be a traditional navigable or relatively permanent water body; second, the wetland must be directly connected to that water in a way that makes it difficult to distinguish where one ends and the other begins. Wetlands separated by uplands, berms, or similar features will no longer be considered WOTUS.
Background
The Sackett v. Environmental Protection Agency case stemmed from a lengthy legal battle over whether the Sackett family's Idaho property was subject to federal CWA permitting requirements with an expansive reading of what constitutes WOTUS. The Supreme Court ruled in 2012 that landowners like the Sacketts could challenge federal jurisdictional determinations in court. But in 2023, the Court re-visited and limited the scope of WOTUS.
Specifically, the 2023 Sackett decision ended the broad “significant nexus” test for jurisdictional waters and wetlands from Justice Kennedy’s plurality opinion in the 2006 decision Rapanos v. United States. In 2023 Justice Alito and the majority largely adopted the narrower test for measuring CWA protection from Justice Scalia’s four-justice opinion in Rapanos. The new two pronged-test for linking one body of water to an adjacent wetland to constitute WOTUS requires (1) “that the adjacent [body of water constitutes]…’water[s] of the United States’ (i.e. a relatively permanent body of water connected to traditional interstate navigable waters),” and (2) “that the wetland has a continuous surface connection with water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins,” or that it is “indistinguishable” from the water.
The EPA’s action is anticipated to institutionalize this narrower CWA interpretation.
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