Thoughts on the proposed WOTUS Rule

On November 17,  the EPA  and Army Corps of Engineers issued a proposed rule to revise the definition of “waters of the United States" consistent with the Supreme Court's Sackett v. EPA  decision. My colleagues and I at Dawson & Associates have analyzed the WOTUS issue extensively (here, here and here).  In the coming weeks, we will address aspects of the Proposed Rule but what follows is an initial WOTUS analysis.

Clean Water Act. The Proposed Rule limits the reach of Clean Water Act (CWA) jurisdiction compared with the broader Biden Administration’s WOTUS Rule. The new proposed rule also eliminates the use of non-jurisdictional features such as ditches or swales to provide a sufficient hydrological connection to a flowing stream for CWA jurisdiction. 

Relatively permanent flow. The new Rule clarifies that culverts, tunnels and similar structures eliminate jurisdiction unless they have relatively permanent flow. The document defines relatively permanent flow to require that a tributary have a continuous surface connection to a traditional stream, at least during the wet season. A wetland is only jurisdictional federally if it clearly abuts a connected water so as to be indistinguishable from that water. 

As a practical matter, flow questions will still be subject to practical interpretation using tools identified in the proposed rule. For example, the Rule could eliminate certain areas in the arid west that are mostly dry but flow in certain storm events.

Subsurface flow. The Proposed Rule clarifies that a subsurface flow and groundwater are not tributaries. This is a change from the Biden rule which allowed shallow subsurface flow to be used to establish a connection if it connected to a relatively perennial stream 

The Supreme Court held in Sackett that ecological importance cannot be a basis for declining a permit. Overall, this Proposed Rule follows the Supreme Court’s Sackett reasoning and could constrain CWA jurisdiction compared with the Biden rule by removing many areas with ephemeral and/or intermittent streams and wetlands that are a considerable distance from traditionally flowing streams.  

The proposed rule provides for 45 days of public comment from its publication in the Federal Register. The Rule will likely be finalized during the first half of 2026.

Larry Liebesman, Esq.

Senior Advisor

A nationally recognized environmental lawyer with more than 40 years of experience, including 11 years at the U.S. Justice Department, Larry specializes in federal Clean Water and Endangered Species Acts and the National Environmental Policy Act (NEPA). 

The views expressed here are those of the author and do not necessarily reflect the views of Dawson & Associates.