WOTUS Fatigue? Not So Fast

Are we finally done with the WOTUS (waters of the U.S.) wars? Many were hoping the answer was “yes” after the Supreme Court’s 2023 decision in Sackett v. EPA, which finally disposed of the vexed “significant nexus” test laid down in the 2006 case of Rapanos v. United States for defining a “wetland.” The 2006 decision was widely attacked as both confusing policy and bad law.
The Corps of Engineers and Environmental Protection Agency, the nation’s two water regulators, dutifully crafted a new set of rules to comply with Sackett, releasing them on November 25, 2025. It was the sixth such rule revision during the never-ending WOTUS wars as political and legal momentum see-sawed back and forth.
No longer would “significant nexus” be used to determine whether a connecting waterway or wetland would be covered. Instead, Section 404 of the Clean Water Act would cover “only wetlands that are as a practical matter indistinguishable from waters of the United States,” as Justice Samuel Alito wrote. “Adjacent” was going to mean visibly adjacent in a surface connection.
Were the new rules really Sackett-compliant? A lot of industry and farm groups didn’t think so. Twenty-six states were skeptical; they sued to have the new rules halted by injunction. They claimed that the new rules were still too vague, left too much undefined and gave too much wiggle room for the Corps to craft restrictive rules that didn’t really comply with the spirit of Sackett. In those states, while the lawsuit is underway, regulations will revert to a Sackett-compliant version of the 2015 WOTUS rules.
The new set of proposals, published September 4 in the Federal Register, intends to tighten up some definitions of terms and provide greater clarity and transparency as well as to end the dual regime of water regulation across states.  Public comments are due by October 9. Both agencies stress that the supplemental proposal does not withdraw or replace the November 2025 proposal.
“The EPA’s goal is a durable WOTUS definition that follows the law and ends burdensome regulatory uncertainty,” EPA Administrator Lee Zeldin said. “Today’s action reflects our continued commitment to transparency and public input, ensuring we have fully considered a wide range of potential policy options. We look forward to public feedback on this supplemental notice, which will help strengthen the real-world expertise behind the final rule.”
“Under President Trump’s leadership and the Army’s ‘Building Infrastructure, Not Paperwork’ initiative, we are overhauling sclerotic government overreach to remove friction from our economy,” said Adam Telle, acting secretary of the Army. “The Supreme Court’s Sackett decision delivered the certainty our nation has been seeking for decades, and today we are taking one more step to ensure our regulations adhere to that decision. We have worked alongside EPA Administrator Lee Zeldin to ensure we develop a rule that faithfully adheres to Sackett and provides an even more straightforward articulation of federal jurisdiction under Section 404 of the Clean Water Act. All Americans, including landowners, farmers, sportsmen, conservationists and businesses, deserve the opportunity to further shape this rule, which will enable them to carry out their version of the American Dream free from improper bureaucratic interference. The U.S. Army Corps of Engineers stands ready to implement this rule once final, using technology like never before, to give Americans answers from their government at Trump Speed.”

Reactions
Initial reactions fell along predictable fault lines. Farm and industry groups have been cautiously supportive, while environmental groups — which already opposed the Sackett decision — reacted with dismay.
Jon Devine of the Natural Resources Defense Council, said the proposal “declares open season” on the nation’s waterways. Julia Glass, a policy spokesperson at the Center for Biological Diversity, said the plan will “wipe out life-sustaining waterways in every corner of the nation.” Waterkeepers Alliance called the proposal “the most consequential attack on clean water since the Clean Water Act was passed in 1972.”
The National Cotton Council said, “The supplemental rule outlines revised standards for federal jurisdictional waters, including modified definitions for “relatively permanent” waters, which may retain jurisdictional status through anomalous events such as droughts. Also, “perennial” waters are defined by standing or continuous flow under ordinary conditions. Additionally, the proposal addresses requirements for wetlands to possess a continuous surface connection with jurisdictional waters, while leaving Category A1 traditional navigable waters unchanged.
“We’re pleased that the agencies have published a supplemental proposal that provides more clarity for agriculture on which waters are jurisdictional under the Clean Water Act,” NCC Chairman Nathan Reed said. “We also appreciate that the agencies attempted to adhere to Supreme Court precedents to create a more durable rule without imposing unworkable burdens on farm operations or creating legal instability across administrative changes.”
For additional information, including where to register a comment, visit https://www.epa.gov/wotus.