Clean Water Act (CWA) Sections 404 and 401 and the Waters of the U.S. (WOTUS) Rule continue to evolve in today’s regulatory landscape, creating new challenges for project planning and permitting. Wetland Studies and Solutions, Inc. (WSSI) and Davey Resource Group (DRG) recently hosted a webinar to update attendees on regulatory changes, permit program transitions, and key policy developments across the U.S.
Experts from WSSI and DRG joined representatives from the U.S. Army Corps of Engineers, the Virginia Department of Environmental Quality, and AquaLaw.
Setting The Stage: The Latest On WOTUS & CWA
In fall 2025, the U.S. Environmental Protection Agency (EPA) proposed another revision to the definition of WOTUS with the aim of aligning CWA protections for wetlands and streams more closely with the 2023 Sackett v. EPA Supreme Court ruling. The public comment period ended on Jan. 5, 2026, but the rule is still being finalized.
In January 2026, the EPA proposed new rules for CWA 401 certification. The proposed rule includes changes such as:
- Making the Section 401 certification applicable only to point-source discharges, or discharges that come directly from a pipe or ditch;
- Providing a defined list of application requirements that states are not allowed to add;
- Setting a six-month review period that may be extended by the federal agency, the state, and the applicant up to one year;
- Narrowing the certification’s scope to the “discharge” rather than the “activity”; and
- Requiring the applicant’s consent to modify the certification after issuance.
Regional Roundtable: Highlights from the Webinar
While federal agencies are finalizing these proposed rules, states are taking the reins on their own regulation of wetlands and streams. For example, Colorado, New York, and Maryland have expanded water regulations, while North Carolina and Indiana have reduced them. Here is a look at how each region of the U.S. is responding to environmental regulation changes:
- Northeast/Mid-Atlantic – New Jersey and New York are seeing notable regulatory shifts in response to the Sackett decision, which expands protections for bodies of water and increases development of renewable energy infrastructure projects. Pennsylvania is responding to the increase in data center development with the Governor’s Responsible Infrastructure Development (GRID) standards, which incentivize large infrastructure developers to exceed environmental protection standards and assume greater responsibility for power requirements. Maryland is now enforcing a new forest conservation requirement and incorporating environmental justice elements into its Tier II High-Quality Waters Review. Mitigation requirements are also undergoing a significant overhaul.
- Midwest – All states in the Midwest except Indiana and Ohio use the post-Sackett interpretation of federal water protections, meaning fewer wetlands and streams are regulated at the federal level. Many states within this region already have robust isolated wetland policies in place or in the works, such as Minnesota and Wisconsin.
- Southeast – Most states in the Southeast, like North and South Carolina, are largely aligned with the post-Sackett federal stance, though some districts maintain specific assessment methods.
- Virginia - The Virginia Department of Environmental Quality already has a very stringent wetland and stream policy, which means there is no change post-Sackett at the state level. This could mean reduced use of certain federal permitting pathways, such as Nationwide Permits, and an increase in Virginia-specific permits and State Surface Water Determination (SSWD) confirmations. Additionally, 2026 is a big year for Virginia with both the Virginia Water Protection Program’s General Permits and the State Programmatic General Permit from the U.S. Army Corps of Engineers - Norfolk District expiring and new versions coming online.
Development & Mitigation In A Post-Sackett Environment
Federal regulatory changes are creating a disconnect across states by prompting states to become more involved in stream and wetland permitting. This disconnect can create new challenges in land development, particularly with the availability of mitigation sites.
Land development, from residential and commercial properties to large-scale data centers, is increasing rapidly, driving a surge in demand for mitigation credits. Over the last three years, the Southern U.S. has seen increased demand for wetland mitigation credits, while the Midwest has experienced accelerating demand for stream mitigation credits.
Virginia, in particular, is rapidly developing. Data center development is expanding beyond Potomac, straining wetland credit supply in the Middle James and Roanoke. As a result, the Virginia Department of Environmental Quality (DEQ) is updating its mitigation tools. They launched the state’s Stream, Wetland, and Nutrient (SWaN) Credit Exchange in October 2025 as a digital marketplace platform where mitigation and nutrient credit offers can be browsed, compared, and reserved. The U.S. Army Corps of Engineers also approved VDEQ’s in-lieu fee program, the Wetland and Stream Replacement Fund (WSRF), to purchase credits for active permits, applications, court orders, and other regulatory purposes when mitigation bank or other compensatory mitigation is not available.
Moving Forward Together
Having a consistent partner is key to handling shifting regulations. Our experts have a deep understanding of permitting processes and often coordinate with regulatory agencies and local boards to work seamlessly to provide the required permitting, plans, and details for stream and wetland work.
To learn more about DRG and WSSI’s capabilities, visit our websites at Davey.com and Wetlands.com. A recording of the webinar and slides from the presentations are available at https://www.wetlands.com/wssi-and-drgs-regulatory-updates-webinar-spring-2026/.
