A newly proposed rule from the Trump Administration’s Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers aims to give landowners a more predictable definition of “waters of the United States” (WOTUS).

The definition of WOTUS has long been a point of contention for landowners. In past administrations, farmers, ranchers, home builders, and other small businesses with water on their property have faced overreach from the federal government, as it used WOTUS to claim jurisdiction over private lands.

Background

The Clean Water Act (CWA) gives the federal government authority over certain “navigable waters,” which the Act defines as “waters of the United States” or WOTUS. The CWA charges EPA and the Army Corps with enforcement, and these agencies have issued regulations defining which waters or wetlands are subject to federal jurisdiction. If a water or wetland is a WOTUS, then a landowner must obtain a permit before improving and altering the area, even though he or she owns the land.

After longstanding confusion and conflicting interpretations about what waters are WOTUS, the Supreme Court decided Sackett v. EPA in 2023. In Sackett, the Court struck down a vague test that the agencies had long used to claim jurisdiction. Thus, the Court restricted when the agencies could do so going forward. NFIB urged the Court to reach this outcome and applauded the decision benefiting landowners.

But the Biden Administration pushed forward. It responded to the Sackett decision by issuing a new WOTUS rule that further expanded federal government jurisdiction, leaving small businesses with extreme uncertainty. NFIB expressed disappointment that the federal government failed to head the Supreme Court’s mandate and continued to complicate WOTUS.

Newly Proposed Rule

On November 20, 2025, EPA and the Army Corps proposed a new WOTUS rule. Small businesses reacted to the new rule with appreciation and optimism for a better WOTUS future.

Among the changes in the new rule, a few will have a significant impact on small businesses and landowners.

Clearer Definitions

• Relatively Permanent
  • In Sackett, the Supreme Court said that “waters” in WOTUS included “only those relatively permanent, standing or continuously flowing bodies of water forming geographical features’ that are described in ordinary parlance as streams, oceans, rivers, and lakes.”
  • The proposed rule defines relatively permanent waters as those that are “standing or continuously flowing bodies of surface water that are standing or continuously flowing year-round or at least during the wet season.”

 
• Continuous Surface Connection
  • In Sackett, the Supreme Court said that wetlands are subject to the CWA and federal authority only if they are “adjacent” to a WOTUS, and the wetland has a “continuous surface connection” with that WOTUS, “making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”
  • Under the proposed rule, a water with a “continuous surface connection” to a WOTUS means: 1) the water in question is abutting (touching) an already jurisdictional WOTUS, and 2) the water in question has surface water at least during the wet season.
  • “At least during the wet season” is a temporal requirement that will make it easier for a landowner or consultant to determine what areas satisfy the continuous surface connection test.

 
Restrictions of Wetland Jurisdiction

• The proposed rule’s definition of “continuous surface connection” reduces the number of wetlands that will be jurisdictional and subject to federal authority.
• Combined with the instructions of the Supreme Court in Sackett, the proposed rule’s definition of “continuous surface connection” will mean that a wetland is not jurisdictional unless it meets all three of these requirements:

1. The area in question meets the definition of a wetland; and
   1. A “wetland” is defined as an area that is “inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation.” Examples are swamps, marshes, bogs, etc.

2. It is abutting (touching) that WOTUS; and

3. It has surface water at least during the wet season.

• Unlike previous WOTUS rules, the proposed rule makes clear that only the portion of a wetland that satisfies the two-part continuous surface connection test will be a jurisdictional WOTUS. For example, if only one part of the wetland has surface water throughout the wet season, but other portions of the wetland do not, then EPA will split up the wetland for determining jurisdiction. This is a stark contrast to previous agency practices, which would include the entire wetland as jurisdictional if any portion of it was.

 
Exclusion of Most Ditches

• Although ditches are generally excluded from the definition of WOTUS, previous administrations have treated the ditch exclusion differently so that many ditches would be jurisdictional.

• To address and clarify this confusion, the proposed rule excludes all ditches “that are constructed or excavated entirely in dry land.”

• The clarity of the proposed rule means that the jurisdictional reach of ditches will depend solely on where the specific ditch was constructed. Ditches constructed in wetlands or tributaries will still be jurisdictional, and in rare cases, a ditch constructed in dry land may meet an independent basis for federal jurisdiction, such as a ditch being navigable (like a canal) or qualifying as a “point source” for pollutant discharge. All other ditches should be excluded from WOTUS under the proposed rule.

 
Absolute Certainty on Ephemeral Waters

• Ephemeral waters are those that are normally dry but may have surface or standing water flow temporarily only due to precipitation events like rain or snow fall.
• The proposed rule makes clear that “ephemeral waters . . . are not jurisdictional.”

 
If you have additional questions on the new WOTUS rule, reach out to the NFIB Legal Center at info@nfib.org.

Updated December 1, 2025