The U.S. Environmental Protection Agency (EPA) recently announced a proposed revision to the definition of Waters of the United States (WOTUS). The proposed definition aims to align Clean Water Act protections for wetlands and streams more closely with the 2023 Sackett v. EPA Supreme Court ruling.
In the proposal, the EPA is attempting to define key terms, including “relatively permanent water” (RPW), “continuous surface connection,” and “tributary.” This rule is expected to significantly limit federal jurisdiction over wetlands and streams, deferring jurisdiction to individual state regulations.
This new rule restricts federal jurisdiction over wetlands by clarifying that they are jurisdictional only if they are relatively permanent and connected by relatively permanent waters and have a continuous surface connection to a relatively permanent water.
If implemented, the definition of an RPW would include a body of surface water that is standing during the “wet season.” Additionally, the proposed definition of a “continuous surface connection” includes two new criteria for jurisdiction:
- They must be abutting or touching a jurisdictional water.
- They must have surface water at least during the wet season. This means semi-permanent surface hydrology that is uninterrupted throughout the wet season, except during extreme drought, and would not include wetlands without semi-permanent surface hydrology, including those with only saturated soil conditions supported by groundwater.
The EPA’s proposal also defines a tributary as “a body of water with relatively permanent flow, on a bed and bank, that connects to a downstream traditional navigable water or the territorial seas, either directly or through one or more waters or features that convey relatively permanent flow.” Exemptions from the definition include groundwater, water treatment systems (including settling ponds), prior converted cropland, pits, certain ditches, and ephemeral waters.
A new inclusion in the proposed definition is the Wet Season Concept. This concept considers bodies of water with continuous surface hydrology resulting from predictable seasonal precipitation patterns as federally protected under the Clean Water Act. Tools such as the Antecedent Precipitation Tool (APT) and Web-based Water Budget Interactive Model Program (WebWIMP) are used to determine whether a body of water meets the criteria of a Wet Season Concept. The Wet Season Concept excludes indicators like the Ordinary High Water Mark and instead focuses on determining if a feature has relatively permanent flow during the wet season.
The proposed definition is currently undergoing a comment period that ends on 01/05/26. The final rule may be implemented in the Spring or Summer of 2026.
Once finalized, the proposed definition can cause significant regulatory shifts. Now is the time to understand the EPA’s proposed definition, prepare comments, and gear up for potential changes in your projects. Our experts are ready to help! Contact your local Davey Resource Group office to learn how your projects could be affected.
