Water Rule Rewritten: Federal agencies redefine waters of the U.S.
On Nov. 20, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) published a proposal to revise the Clean Water Act’s (CWA) regulatory definition of “waters of the U.S.” (WOTUS).
According to the EPA’s corresponding press release, the proposal was written in alignment with the U.S. Supreme Court’s May 2023 decision in Sackett vs. EPA, which narrowed the scope of CWA jurisdiction and rejected broad applications of the significant nexus test in some instances.
The agencies say the new rule seeks to confirm regulatory language in the court’s reasoning and provide a predictable, administrable test for field staff, landowners and regulated parties.
EPA and USACE further note the proposed rule was developed using input from multiple sources and “delivers on the Trump administration’s commitment to protect America’s waters while providing the regulatory certainty needed to support the nation’s farmers who feed and fuel the world.”
Key changes proposed
Described by the EPA and USACE as a “clear, durable and commonsense definition,” the proposed revision ultimately narrows and clarifies which waters are federally jurisdictional under the CWA.
Key changes in the proposal include a clear definition of terms like “relatively permanent,” “continuous surface connection” and “tributary” to properly align WOTUS with the CWA and the precedent set by the Supreme Court in Sackett vs. EPA and to reaffirm wetlands must be indistinguishable from jurisdictional waters through a continuous surface connection.
The proposal also seeks to establish that jurisdictional tributaries must connect to traditional navigable waters either directly or through features providing “predictable and consistent flow” and incorporate terminology to help determine whether a water body qualifies as WOTUS.
Additionally, the proposal aims to preserve and clarify exclusions for certain ditches, croplands and waste treatment systems, add a new exclusion for groundwater and strengthen the authority for states and Tribes to make decisions by using their expertise in local resources.
“The definition of WOTUS influences CWA implementation, including whether farmers, landowners and American businesses must secure permits before they can pursue projects which might impact surface water quality,” EPA states. “Having a durable, consistent and clear definition of WOTUS is essential to lowering costs for Americans and accelerating economic growth, while protecting human health and the environment.”
Controversy continues
Unsurprisingly, the agencies’ proposal caused split reactions down familiar lines.
While many agricultural, state and industry groups praised the proposal for its long-needed clarity, environmental and conservation groups reacted less positively, warning the proposal could strip protections from millions of acres of wetlands and small streams which provide flood control, groundwater recharge and wildlife habitat.
Wyoming’s delegation was among those who welcomed new WOTUS clarity, as both Sens. Cynthia Lummis and John Barrasso (both R-WY) applauded the proposal for protecting local landowners from overreach and bringing about a predictable standard for ranching and energy activities.
“Wyoming farmers, ranchers and landowners shouldn’t have every puddle or gully regulated by Washington, D.C. bureaucrats,” Lummis states. “Folks deserve a clear definition, and this delivers. I’m glad the EPA created a rule people can actually count on.”
Barrasso comments, “I applaud the Trump administration for protecting water resources in the West and respecting local authority. The Biden-era WOTUS rule gave Washington, D.C. control of everything from ponds to prairie potholes. This new proposal stands with Wyoming’s farmers, ranchers and landowners by protecting our water from federal overreach.”
Additionally, multiple ag and industry groups voiced their support for the proposal, including the America First Policy Institute, American Chemistry Council, American Exploration and Mining Association, American Farm Bureau Federation, American Forest and Paper Association, American Iron and Steel Institute, American Road and Transportation Builders Association, American Soybean Association, Forest Landowners Association, Gas Processors Association Midstream, Global Energy Institute, National Association of Manufacturers, National Association of State Departments of Agriculture (NASDA), National Cattlemen’s Beef Association (NCBA), National Cotton Council, National Mining Association, National Turkey Federation and Ranchers-Cattlemen Action Legal Fund United Stockgrowers of America, among many others.
NCBA President Buck Wehrbein states, “WOTUS has been a longstanding and frustrating issue for family farmers and ranchers. Every few years, the definition has changed. Often, this meant small water features like prairie potholes or dry ditches suddenly fell under federal regulation.”
“NCBA has spent years fighting to protect cattle producers from excessive red tape. We went to the EPA, advocated on Capitol Hill and even took this issue all the way up to the Supreme Court to protect our members from federal overreach,” Wehrbein continues. “We appreciate the EPA finally fixing previous WOTUS rules and supporting America’s family farmers and ranchers.”
NASDA Chief Executuive Officer Ted McKinney further comments, “NASDA appreciates EPA listening to input from state departments of agriculture and other stakeholders regarding problems with prior WOTUS rulemakings. NASDA is pleased our federal colleagues are now working cooperatively with state coregulators to ensure the goals of the CWA are met while minimizing unjustified interference with agricultural and other activities which feed, clothe and house Americans and drive our nation’s economy.”
“NASDA is excited to properly reengage with EPA under cooperative federalism to ensure our local water resources are protected and farmers have the information and resources they need to make the best decisions about how to manage their land,” he adds.
Moving forward
The proposed rule was published in the Federal Register on Nov. 20, kicking off a 45-day public comment period which will close on Jan. 5, 2026.
After the comment period, EPA and USACE will review input, potentially revise the text and then publish a final rule later in 2026. The final rule itself will be litigated, as past WOTUS rules have triggered multiple lawsuits and court injunctions.
If finalized and upheld, the rule would set the federal baseline for CWA jurisdiction, but states and Tribes would have the authority to assert broader protections by statute, regulation or their own permitting programs.
EPA states, “When finalized, the rule will cut red tape and provide predictability, consistency and clarity for American industry, energy producers, the technology sector, farmers, ranchers, developers, businesses and landowners for permitting under the CWA.”
Hannah Bugas is the managing editor of the Wyoming Livestock Roundup. Send comments on this article to roundup@wylr.net.
