Waters of the United States: Updates Regarding Proposed Rule

The term Waters of the United States (or ‘WOTUS’) and its implications on federal wetland protection have been a major point of contention, most notably sparked by the case brought upon by Michael and Chantell Sackett in 2007 to resume construction work on their property, which eventually made it to the Supreme Court of the United States (SCOTUS) in 2021. Sackett v. EPA, which started as a relatively minor, localized property dispute, became part of a Supreme Court case which had the potential to affect wetlands and property development nationwide. A decision was made in favor of the Sacketts in May 2023, and a final rule was made effective on September 8, 2023, which effectively removed protections previously in place on approximately 63% of the United States’ Wetlands.

What has changed under the current administration?

On March 12, 2025, United States Environmental Protection Agency (USEPA) President Lee Zeldin announced that the WOTUS definition is to be further revised in order to simplify the permitting process and reduce costs associated with business operations, while continuing to maintain the intent of pollution prevention. With the proposed revisions, the USEPA stated that they intended to “provide American farmers, landowners, businesses, and states with clear and simplified direction” with respect to the WOTUS Rule.

On November 17, 2025, the USEPA and the United States Department of the Army officially announced the revised proposed rule, which aimed to further clarify and implement the WOTUS definition per Sackett v. EPA. There was a 45-day public comment period regarding the revised rule, which was completed and closed on January 5, 2026.

What major items were proposed as part of the revised rule?

• Changes to rule definitions to strengthen the power of the Sackett v. EPA decision, notably that of “continuous surface connection,” which would effectively federally deregulate certain bodies of water previously considered WOTUS
• Removing restrictions on interstate waters that were present solely due to the fact that the waterway spanned multiple states
• Clarifications on how ditches constructed or excavated on normally dry land are handled, and other specific exclusions from the rule
• Explicitly stating that groundwater is not considered WOTUS

Please contact Walden at 516-559-6976 to discuss how the revised rule may affect you and your facility in the future – our knowledgeable staff can help you maintain compliance as regulations change.