On March 12, 2025, the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency issued a Federal Register notice stating their intent to review the definition of “waters of the United States” (“WOTUS”), which defines the scope of federal jurisdiction over various water bodies including wetlands under the Clean Water Act. The agencies will hold at least six listening sessions on how to revise the WOTUS definition to be consistent with the United States Supreme Court decision, Sackett v. Environmental Protection Agency, 598 U.S. 651 (2023).
The same day, the agencies also issued an interim guidance document regarding the application of the WOTUS rule. The key item of the guidance document was the rescission of prior Biden Administration guidance in which EPA determined that a “continuous surface connection” between an adjacent wetland and a covered water could be established by way of a discrete feature like a non-jurisdictional ditch, pipe, or culvert, resulting in federal jurisdiction over the wetland. The guidance document establishes an interim two-part wetlands test based on the Sackett decision to determine when a wetland adjacent to an otherwise jurisdictional water is subject to the Clean Water Act.
For a wetland to be jurisdictional, it must:
- Be adjacent to a traditional navigable water, or a relatively permanent body of water connected to a traditional navigable water; and
- Have a continuous surface connection to a requisite covered water making it difficult to determine where the water ends and wetland begins.
According to the agencies, moving forward, they “will seek to provide clear and transparent direction regarding the definition and will prioritize practical implementation approaches, provide for durability and stability, as well as for more effective and efficient jurisdictional determinations, permitting actions, and other actions consistent with relevant decisions of the Supreme Court.” The recission of the Biden Administration’s guidance represents a significant step in this direction by limiting the reach of the Clean Water Act over wetlands in accordance with the new Trump Administration’s interpretation of the Sackett decision.
