A new rule proposed by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers seeks to clarify which bodies of water fall under federal jurisdiction, a longstanding issue for landowners. The definition of “waters of the United States” (WOTUS) has been debated for years, with previous regulations leading to uncertainty and claims of federal overreach.
The Clean Water Act authorizes the federal government to regulate certain navigable waters, known as WOTUS. Enforcement is carried out by the EPA and Army Corps, requiring landowners to obtain permits before making changes to areas deemed under federal control.
In 2023, the Supreme Court’s decision in Sackett v. EPA narrowed the agencies’ authority by rejecting a broad test for determining jurisdiction. "NFIB urged the Court to reach this outcome and applauded the decision benefiting landowners." However, after this ruling, a new WOTUS rule issued by the Biden Administration expanded federal oversight, causing concern among small businesses. "NFIB expressed disappointment that the federal government failed to head the Supreme Court’s mandate and continued to complicate WOTUS."
On November 20, 2025, another proposed rule was introduced by EPA and the Army Corps in response to ongoing concerns. The proposal aims to provide clearer definitions that impact how wetlands and ditches are regulated.
For “relatively permanent” waters, reflecting language from Sackett v. EPA, these are defined as “standing or continuously flowing bodies of surface water that are standing or continuously flowing year-round or at least during the wet season.” Wetlands will only be subject to regulation if they are adjacent to a WOTUS and have a “continuous surface connection,” meaning they touch an already regulated water body and have surface water present at least during wet seasons.
The new approach means only parts of wetlands meeting all criteria will be regulated, rather than entire areas as in previous rules. For example, if only one section of a wetland contains surface water throughout the wet season while other sections do not, only that part would be considered jurisdictional.
Ditches constructed entirely on dry land are excluded from regulation under this proposal unless they meet specific criteria such as being navigable or acting as a point source for pollution discharge. This change addresses past inconsistencies where many ditches were included under WOTUS due to varying interpretations.
Additionally, ephemeral waters—those that flow only temporarily after precipitation—are explicitly excluded from federal jurisdiction in this proposed rule: “The proposed rule makes clear that ‘ephemeral waters . . . are not jurisdictional.’”
Landowners seeking further information about these changes can contact the NFIB Legal Center at info@nfib.org.
