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WOTUS Is Changing Again: What This Means for Your Permits
Waters of the United States (WOTUS) Is Changing Again: What That Means for Your Site and Your Permits
By Compliance Management International
The Environmental Protection Agency (EPA) and the Army Corps have proposed a narrower definition of the waters that fall under federal Clean Water Act jurisdiction. A final rule could land at any time. Here is what is shifting, why this definition never stays still, and how to plan around it.
If you work in construction, site development, stormwater management, or anything touching wetlands and drainage, you have almost certainly run into the term Waters of the United States, or WOTUS. Usually it surfaces alongside a permit that took longer than anyone expected.
WOTUS is the definition that decides which streams, wetlands, and water bodies fall under federal Clean Water Act jurisdiction. By extension, it decides which projects need a federal permit before anyone disturbs, fills, or discharges into them. Right now, the agencies are rewriting that definition again.
Why the WOTUS Definition Never Stays Settled
Start with the root of the problem. The Clean Water Act itself never defines waters of the United States. Instead, Congress left that job to EPA and the Army Corps through regulation, and to the courts through decades of litigation. As a result, WOTUS has become one of the most rewritten definitions in federal environmental law.
The current round traces back to Sackett v. EPA, decided in May 2023. That ruling narrowed federal jurisdiction to wetlands with a continuous surface connection to a relatively permanent body of water. On paper, the standard sounds precise. In practice, the Court defined neither phrase, so the agencies and the regulated community have argued over both ever since.
Several forces keep this definition in motion:
- The statute itself never defines the term, so the scope comes entirely from regulation
- Two agencies write the rule jointly, and each administration revisits it
- Courts reinterpret the boundaries, most recently in Sackett
- Litigation stays or vacates rules in some states while leaving them in force elsewhere
- Key phrases such as wet season stay open to site-specific interpretation
A Narrower Federal Rule Does Not Mean Fewer Obligations
Here is the detail that surprises people outside of environmental compliance. When federal jurisdiction contracts, obligations do not simply disappear. Instead, they shift.
Federal Jurisdiction
Set by WOTUS and enforced through Section 402 discharge permits and Section 404 dredge-and-fill permits. The proposed rule would narrow it.
State Jurisdiction
Set independently by each state, which may regulate more stringently than the federal floor. Several states have expanded coverage as federal reach shrinks.
The Clean Water Act has always allowed states to regulate more stringently than the federal floor, and many do. Therefore, as federal jurisdiction narrows, several states have moved to extend their own protections to waters and wetlands that would fall outside the new definition. The same wetland on the same parcel might require a federal permit in one state and only a state permit, or none at all, one state line away.
For any organization working across multiple states, a single federal answer to “is this water jurisdictional” no longer settles the question. The state answer carries equal weight, and it can change independently of whatever EPA finalizes.
5 Changes the Proposed Rule Would Make
The proposal leaves the permitting programs themselves alone. What it changes is which water bodies trigger those programs in the first place.
1
A Narrower Definition of “Relatively Permanent”
The proposal would require standing or flowing water year-round, or at minimum during a defined wet season, before a feature qualifies as jurisdictional.
Seasonal and ephemeral features feel this first. Consequently, arid and semi-arid sites see the largest swing.
2
A Tighter Read of “Continuous Surface Connection”
A wetland would need surface water that actually abuts a jurisdictional water. Sitting nearby, or connecting only in a wet year, would no longer qualify.
Document the physical connection rather than the proximity when you commission a delineation.
3
Broader Exclusions for Ditches
The proposal expands exclusions for certain ditches, including roadside ditches constructed on dry land, even where flow stays fairly consistent.
Pull the construction history. How a ditch was built now matters as much as how it behaves today.
4
An Explicit Groundwater Exclusion
The rule would state plainly that groundwater falls outside WOTUS, along with features that move water only through subsurface flow.
This mostly confirms current practice, which makes it the piece least likely to shift in litigation.
5
Clarified Waste Treatment and Cropland Exclusions
The proposal reaffirms the waste treatment system exclusion and aligns prior converted cropland more closely with USDA determinations.
If you operate treatment ponds or lagoons, confirm they still fit the exclusion as the final text words it.
What the Rule Changes, and What It Leaves Alone
A common misreading of this proposal is that it rewrites how Clean Water Act permitting works. It does not. Section 402 discharge permits and Section 404 dredge-and-fill permits operate exactly as they do today once a water body is determined jurisdictional. The application process, the review, and the conditions all stay the same.
What changes is the threshold question that comes first. Fewer water bodies and wetlands would qualify as federally jurisdictional than under the rule currently in place in many states. For anyone whose projects depend on a jurisdictional determination to know whether a federal permit is even required, that is a meaningful shift, even though the permit programs themselves never move.
The permits work the same way. What changes is which waters trigger them in the first place.
Same Programs, New Threshold
What Stays the Same
- Section 402 discharge permitting
- Section 404 dredge-and-fill permitting
- State water quality certification
- Existing permit conditions and terms
What Changes
- Which features count as jurisdictional
- How agencies read seasonal connections
- Which ditches fall under exclusions
- How many new permits get issued
What to Do While the Rule Is Still Moving
A rule the agencies are still drafting is not a rule to plan around as though it were settled. However, four steps make sense regardless of how the final definition lands. Work through them roughly in this order.
1
Re-Verify What You Already Have
Do not assume a prior jurisdictional determination still holds. If someone assessed a wetland on your site under an earlier version of WOTUS, a new rule can change that answer.
Projects with a long runway between site assessment and construction carry the most exposure here.
2
Get a Current Determination
Next, commission a site-specific jurisdictional determination before you commit to a project timeline, rather than relying on a general read of the new rule.
Conditions around what counts as a wet season connection are exactly where this rule stays least settled.
3
Check State Requirements Separately
Then confirm the state answer on its own. Given the widening gap between federal and state coverage, a water body that drops out of WOTUS may still trigger a state permit.
In short, never read “not federally jurisdictional” as “no permit needed.”
4
Build Permitting Timeline Buffer
Finally, pad the schedule. Litigation has followed nearly every WOTUS rule change of the past decade, and this one will likely follow the pattern.
A rule that is final today can be stayed tomorrow, and that lands directly on permit processing times.
The Bottom Line
Treat This as Direction, Not a Settled Answer
Agencies have rewritten WOTUS roughly every few years since 2015, and this round will probably not be the last. The direction points toward a narrower federal definition. However, the practical effect on any given project depends heavily on where that project sits, both geographically and in terms of how far along it is when the rule finalizes.
For now, treat the current proposal as directional guidance rather than a settled answer. That approach holds up better than planning against a definition that has never stayed still for long.
Questions About a Specific Site or Permit?
Compliance Management International has provided EHS consulting services for over 30 years, including Clean Water Act permitting support, wetland delineations, and jurisdictional determinations. If you need help understanding how the WOTUS changes affect a specific site or project, our team can help.
