On Monday, March 24, 2025, the U.S. Environmental Protection Agency (the “EPA”) and the U.S. Army Corps of Engineers (the “Corps”) issued a Federal Register Notice soliciting stakeholder feedback concerning the implementation of the definition of “waters of the US” or “WOTUS” under the U.S. Clean Water Act in light of the Supreme Court’s 2023 decision in Sackett v. Environmental Protection Agency. The Notice is unique in that it is not a proposed rule, or even an advanced notice of a proposed rule. Rather, it is characterized as an “announcement of listening sessions and solicitation of stakeholder feedback.” The agencies request said feedback by April 23, 2025. This publication, however, signals that a rulemaking is on the horizon, and it forecasts which aspects of the current WOTUS definition the Trump administration is expected to target.
The definition of WOTUS has long been the subject of controversy due to its vagueness, and once again in this administration it remains a topic du jour. Currently, EPA and the Corps interpret WOTUS to be “relatively permanent bod[ies] of water connected to traditional interstate navigable waters” and include “only those adjacent wetlands that have a continuous surface connection because they directly abut [a WOTUS].” In their Federal Register Notice, EPA and Corps request stakeholder feedback on the following terms, phrases, definitions, and conceptual approaches to more clearly defining WOTUS.
- Scope of “Relatively Permanent” Waters – The agencies describe the variety of different regulatory criteria used in the past to determine which tributaries qualify as WOTUS. For example, the agencies note that the 2020 Navigable Waters Protection Rule only considered those perennial and intermittent tributaries that contributed to downstream flow in a typical year to qualify as WOTUS. Whereas, following the Sackett decision, the agencies considered only “relatively permanent” tributaries to be included within the definition of WOTUS. More specifically they ask for comments on the following:
- Whether Certain Characteristics Should Inform the Definition of “Relatively Permanent” – The agencies ask whether characteristics such as flow regime, flow duration, or seasonality should inform the definition of “relatively permanent,” and which features these characteristics should apply to under the definition.
- Methods of Identifying “Relatively Permanent” Tributaries in the Field – The agencies request input on how “relatively permanent” tributaries may be easily identified to assist with the “transparent, efficient, and predictable implementation” of any future rule.
- Definition and Scope of “Continuous Surface Connection” – The agencies seek feedback regarding what it means to “abut” a WOTUS and whether that definition includes wetlands behind a natural berm or similar landform to the extent there is evidence of a continuous surface connection to WOTUS.
- Scope of Jurisdictional Ditches – The agencies request feedback on whether flow regime, physical features, excavation in aquatic resources, type, or use of the ditch, biological indicators, or other characteristics that could provide clear and implementable distinctions between those ditches qualifying as WOTUS and those not.
What You Should Consider
From these and other issues identified in the Notice, the Trump administration is signaling its consideration of a definition of WOTUS (and wetlands included within the definition) that would attempt to implement more objective metrics for the purpose of minimizing the need for interpretation. While such a rule could lessen the transactional costs of a development or other project, a rule that relies on objective metrics could also remove the flexibility afforded by a vaguer rule.
[View source.]
