Understanding EPA’s New Proposed WOTUS Rule: What You Need to Know
This blog provides a high-level overview of a highly complex legal and regulatory issue that has been debated for decades. The definition of “Waters of the United States” (WOTUS) under the Clean Water Act is the subject of extensive litigation, congressional action, and scientific dispute. We are not legal experts, and the information below is intended for general educational purposes—not legal advice.
Why WOTUS Matters
The Environmental Protection Agency (EPA) has released a new proposed rule that redefines Waters of the United States (WOTUS) under the Clean Water Act (EPA 2025). WOTUS is the foundational term that determines which waters fall within federal jurisdiction for pollution control, permitting, and regulatory protection. Its definition directly affects:
Agricultural operations and landowners
Conservation organizations and watershed partnerships
State and tribal agencies
Developers and infrastructure planners
Because the Clean Water Act applies only to “navigable waters”—defined in the statute as “waters of the United States”—each revision to this term reshapes federal authority and private-sector compliance responsibilities.
Background: The Sackett Decision
EPA’s new proposal responds directly to the U.S. Supreme Court’s 2023 decision in Sackett v. EPA (Sackett v. EPA, 598 U.S. 651 (2023)). In that case, the Court sharply narrowed federal authority over wetlands and certain waterways. According to the ruling, a wetland or waterbody is only federally protected if it meets ALL of the following conditions:
It is a “relatively permanent” water,
It is connected to “traditional interstate navigable waters,” and
It maintains a “continuous surface connection” that makes it difficult to tell where the waterbody ends and the wetland begins.
This test eliminated federal protection for many ephemeral, intermittent, and geographically isolated waters—types that are hydrologically important but not permanently connected to larger navigable systems.
What the New Proposed Rule Does
The newly released proposed rule attempts to clarify how EPA and the Army Corps of Engineers will implement the Sackett test. Key features of the proposal include:
1. Clarifying “Relatively Permanent”
The rule explains indicators that agencies may use to determine permanence, including typical seasonal flow patterns, regional precipitation cycles, and long-term hydrologic data.
2. Defining “Continuous Surface Connection”
EPA outlines circumstances under which a wetland may still be considered “adjacent” to a navigable water—for example, wetlands separated by narrow natural berms or shallow uplands may still qualify if water frequently passes over or through them.
3. Explicitly Narrowing Jurisdiction
While the rule aims to provide clearer criteria, it necessarily results in a narrower federal scope. Many wetlands, prairie potholes, headwater streams, and agricultural drainage features will no longer qualify for federal protection under the Clean Water Act.
4. Strengthening State and Tribal Roles
EPA’s fact sheet emphasizes the importance of state, tribal, and local programs in filling regulatory gaps where federal jurisdiction no longer applies (EPA 2025). This shift creates both challenges and opportunities for local conservation and water-quality partnerships.
Public Comment Period: How You Can Participate
EPA and the U.S. Army Corps of Engineers have formally published the proposed WOTUS rule in the Federal Register, triggering an official public comment period that is open until January 5, 2026. This deadline applies to all written comments submitted through the Federal Register docket.
How to Submit a Comment
All comments must reference Docket ID No. EPA–HQ–OW–2025–0322 and may be submitted using any of the following methods:
Regulations.gov (Preferred Method): Submit online through https://www.regulations.gov by searching for the docket number and following the instructions for submitting comments.
Email: OW-Docket@epa.gov with the docket ID in the subject line.
Mail:
U.S. Environmental Protection Agency
EPA Docket Center, Water Docket (28221T)
1200 Pennsylvania Avenue NW
Washington, DC 20460Hand Delivery/Courier: EPA Docket Center (Room 3334, WJC West Building, 1301 Constitution Avenue NW, Washington, DC 20004).
EPA notes that all comments received may be posted publicly, and commenters should avoid submitting confidential or restricted information. Multimedia files (audio/video) must be accompanied by a written comment, which serves as the official submission.
What EPA Is Asking the Public to Comment On
The Federal Register notice includes several specific topics where EPA and the Army Corps are actively seeking public input. These include:
1. Clarifying Key Definitions
EPA is requesting comment on the proposed definitions that implement Sackett, including:
“Relatively permanent” waters
“Continuous surface connection”
Definitions of ditches, tributaries, prior converted cropland, and waste treatment systems
These terms determine which waters fall under federal jurisdiction and are therefore key components of the new regulatory framework.
2. Interstate Waters and Lakes/Ponds
The agencies propose:
Eliminating “interstate waters” as an independent jurisdictional category, consistent with Sackett.
Removing “intrastate” from the lakes/ponds category. They seek comment on these deletions and potential alternatives.
3. Revisions to Jurisdictional Exclusions
EPA requests feedback on proposed modifications to the exclusions for:
Ditches
Prior converted cropland
Waste treatment systems
Groundwater (new proposed exclusion)
Stakeholders are encouraged to address whether these revisions provide appropriate clarity and reflect the limits of federal authority under the Clean Water Act.
4. Implementation Challenges and Data Needs
EPA seeks comment on:
How the rule should be implemented across diverse hydrologic regions.
Whether geospatial analyses, flow-duration assessment methods (SDAMs), or Corps permit data could support improved implementation.
State and Tribal considerations, particularly regarding jurisdiction over waters newly excluded from federal protection.
5. Impacts and Economic Analysis
The agencies ask for input on methods to estimate:
Cost savings from reduced permitting needs
Forgone benefits arising from reduced mitigation and impact minimization. They emphasize that, under Sackett, economic impacts cannot define the jurisdictional boundary but may inform rule implementation.
Opportunities for Oral Comments
EPA and the Army Corps will host two hybrid (in-person + virtual) public meetings where commenters will have three minutes to present oral testimony. Registration details and meeting agendas will be posted on EPA’s WOTUS outreach webpage.
Speakers are encouraged to email their oral remarks to EPA and also submit them as written comments to the docket for consideration.
How to Write and Submit an Effective Public Comment
A well-written public comment does more than express an opinion—federal agencies are required to review and consider “meaningful” and “substantive” comments in the rulemaking process. Here’s how to craft a comment that has real impact.
1. Be Clear, Respectful, and Specific
Agencies cannot act on vague feedback like “I support this rule” or “I oppose this rule.” Instead, provide:
Specific concerns or support for particular sections of the rule
Real-world examples of how the proposal affects your land, organization, or community
Citations to scientific studies, local data, or practical experience
Example:
Instead of saying “This harms wetlands,” cite data showing the percentage of wetlands in your region that lack a continuous surface connection.
2. Reference the Exact Section of the Rule
Use section numbers, page numbers, or headings from the proposed rule. This helps regulators understand the precise issue you’re addressing.
3. Provide Evidence and Sources
Strong comments include:
Peer-reviewed science
Economic impact estimates
Local hydrologic studies
Case studies from land management or conservation projects
Tribal ecological knowledge
State or local regulatory frameworks
You don’t need to be a scientist—practical, on-the-ground experience counts as evidence.
4. Propose Solutions, Not Just Problems
If you believe the rule creates a challenge, recommend an alternative approach. Agencies are required to evaluate feasible options when commenters offer them.
5. Submit Before the Deadline
The 45-day window begins on the official publication date—not the press release date. Late comments are generally not accepted unless the agency extends the deadline.
What Happens After You Submit a Comment?
Once the comment period closes, EPA and the Army Corps will:
Review all submitted comments
Organize them into themes
Revise the rule (or justify why revisions are not made)
Publish a final rule with a Response to Comments section
This process can take several months—or longer, if the proposal draws significant public interest.
Why This Matters for Conservation and Land Management
For organizations working at the intersection of land use, habitat protection, and water quality, the definition of WOTUS directly influences:
Restoration project permitting
Federal grant eligibility
Mitigation banking
Agricultural water management
Tribal regulatory autonomy
State-federal coordination
Understanding and participating in the rulemaking process ensures that your expertise is represented during major regulatory decisions.
Final Thoughts
WOTUS will remain one of the most complex and debated areas of environmental policy in the United States. As EPA revises the rule to comply with the Sackett decision, public input is essential to shaping an effective, scientifically grounded, and practical approach to water protection.
If you’d like help drafting a public comment, preparing testimony for a listening session, or interpreting the proposal from a conservation or land-management perspective, RKO Consulting Group is here to assist.