Frequent Questions on the WOTUS Proposed Rule
1. Why is the definition of WOTUS important?
The definition of “waters of the United States” establishes the geographic scope of Federal jurisdiction and applies to the implementation of a variety of programs under the Clean Water Act.
2. How does the WOTUS definition impact American industry, farmers, and landowners?
“Waters of the United States” (WOTUS) defines whether or not a waterbody or wetland is under Federal jurisdiction and protected under the Clean Water Act. The proposed definition of WOTUS protects water quality by affirming Federal protections where appropriate and supporting the role of States and Tribes as primary regulators managing their own land and water resources.
If a waterbody is considered a “water of the United States,” then particular Clean Water Act programs may apply when activities, including discharging pollutants or adding fill material and dirt impact these waters. Clean Water Act programs that may apply include the section 402 National Pollutant Discharge Elimination System (or NPDES) permit program (including the Pesticide General Permit), the section 404 permit program for discharges of dredged or fill material, the section 311 oil spill prevention, preparedness and response program, the section 303 water quality standards and total maximum daily load (or TMDL) programs, and the section 401 State water quality process.
3. What are the differences between the Amended 2023 Rule and this 2025 Proposed Rule?
The agencies are proposing revisions to the amended 2023 definition of WOTUS to fully implement the Supreme Court’s decision in Sackett v. EPA. The agencies are also focusing on clear rules of the road that will unleash economic prosperity while protecting vital water resources.
Specifically, the agencies are proposing to revise the definition of “waters of the United States” under paragraph (a) by:
- Deleting the interstate waters category
- Deleting “intrastate” from the paragraph (a)(5) category for lakes and ponds.
In addition, the agencies are proposing to revise or add the following exclusions:
- Revise the (b)(1) waste treatment system exclusion,
- Revise the (b)(2) prior converted cropland exclusion,
- Revise the (b)(3) ditch exclusion; and
- Add the (b)(9) groundwater exclusion.
The agencies are also proposing to add definitions in paragraph (c) of their regulations for:
- “continuous surface connection,”
- “ditch,”
- “prior converted cropland,”
- “relatively permanent,”
- “tributary,”
- and “waste treatment system.”
These proposed revisions would limit those waters found to be jurisdictional compared to the Amended 2023 Rule, respecting State and Tribal authority over their own land and water resources.
4. How does this proposed rule align with the Supreme Court decision in Sackett v. Environmental Protection Agency?
In the Sackett decision, the Supreme Court provided clear direction requiring our immediate action. The agencies believe that this proposed definition of WOTUS fully implements the court’s direction and follows the law by ensuring clarity and predictability for Federal agencies, States, Tribes, the regulated community, and the public. Ultimately, the proposed rule is intended to ensure that the agencies are operating within the scope of the Federal government’s authority over navigable waters under the Clean Water Act and the Commerce Clause of the U.S. Constitution, consistent with the Sackett decision.
5. How are wetlands factored into this proposed definition of WOTUS?
The agencies are not proposing to change the definition of “wetlands.” They are, however, proposing to add a definition of “continuous surface connection” which is used to identify which wetlands are “adjacent” and therefore jurisdictional under the Clean Water Act. This proposed revision helps fully implement the Supreme Court decision in Sackett v. EPA.
6. What is the timeline for finalizing the proposed rule?
The proposed rule will seek public comment for 45 days. The agencies will review the comments received while developing a final rule as expeditiously as possible.
7. If finalized, what would the cost savings be to landowners, farmers, industry and states pursuing permits?
The agencies anticipate that the reduction in Federal jurisdiction as a result of implementing the Sackett decision would lower costs to landowners, farmers, industries, states and others who might otherwise have had to obtain CWA permits. The agencies are seeking comment on certain data sources and methodologies that could be used to provide more detailed assessments of cost savings for the final rule.
8. Will EPA and the Army revisit jurisdictional determinations from the 2023 Rule or the Amended 2023 Rule?
Approved jurisdictional determinations made under the 2023 Rule or the Amended 2023 Rule are valid for a period of five years from the date of issuance, unless new information warrants revision of the determination before the expiration date, or a District Engineer identifies specific geographic areas with rapidly changing environmental conditions that merit reverification on a more frequent basis. Additionally, anyone with a valid approved jurisdictional determination may ask the Corps to reassess the parcel and issue a new approved jurisdictional determination before the five-year expiration date.
9. What will the public process be for taking final action on the proposed rule?
The agencies are following their standard rulemaking process consistent with the Administrative Procedure Act, which will include a 45-day public comment period on the proposed rule. The agencies also look forward to hearing from a wide variety of stakeholders and co-regulators via public meetings. The agencies will consider this input as they take final action on the rule.