The Agency Is Looking to Sackett v. EPA for a More ‘Durable’ Definition
From Obama to Trump to Biden, each of the last three administrations has directed the United States Environmental Protection Agency (“EPA”) to conduct rulemakings to define the scope of what constitutes a Water of the United States, or WOTUS, under the federal Clean Water Act (“CWA”). Many commentators anticipated the new Trump administration would embark on yet another WOTUS rulemaking in the wake of the U.S. Supreme Court’s decision in Sackett v. EPA, 598 U.S. 651 (2023) (“Sackett II”).
On March 12, 2025, EPA Administrator Lee Zeldin confirmed those suspicions by announcing that EPA will work with the United States Army Corps of Engineers (“Corps”) to once again revise the definition of WOTUS and issued an interim guidance memorandum for EPA and the Corps.
The interim guidance relies on Sackett II as the basis for CWA jurisdiction over wetlands. According to the interim guidance, wetlands must have “a continuous surface connection to a requisite covered water making it difficult to determine where the water ends and wetland begins.” The guidance further directs agencies to resolve scenarios that involve temporary interruptions in surface connection on a case-by-case basis. It is unclear how this guidance or the new rule will differ from the Biden administration’s 2023 Conforming Rule.
Until a new WOTUS rule is finalized, EPA and the Corps will apply the interim guidance when determining whether a wetland has a “continuous surface connection” to a WOTUS under the CWA.
Upcoming Listening Sessions Scheduled
In the press release announcing the plan, Administrator Zeldin explained that both EPA and the Corps will prioritize “a revised definition [that] follows the law, reduces red-tape, cuts overall permitting costs, and lowers the cost of doing business in communities across the country while protecting the nation’s navigable waters from pollution.”
EPA and the Corps published a notice of rulemaking—WOTUS Notice: The Final Response to SCOTUS—in the Federal Register on March 24, 2025. Public recommendations for the rulemaking must be filed by April 23, 2025.
EPA and the Corps also scheduled a series of stakeholder listening sessions soliciting feedback on the new rule. EPA and the Corps will hold at least six listening sessions, as set forth below:
- Listening Session for States: April 29, 2025, from 9:30 a.m.–12:00 p.m. EST (Virtual and at EPA Headquarters in Washington, D.C.).
- Listening Session for Tribes: April 30, 2025, from 1:00–3:30 p.m. EST (Virtual).
- Listening Session for Industry and Agricultural Stakeholders: May 1, 2025, from 9:30 a.m.–12 p.m. EST (Virtual and at EPA Headquarters in Washington, D.C.).
- Listening Session for Environmental and Conservation Stakeholders: May 1, 2025, from 1:00–3:30 p.m. EST (Virtual and at EPA Headquarters in Washington, D.C.).
- Listening Sessions for the Public: To be announced
Registration information for the listening sessions will be published on EPA’s website soon.
More Developments Coming Soon
In the press release announcing plans to rescind and reissue the WOTUS rule, Administrator Zeldin stated, “The previous Administration’s definition of ‘waters of the United States’ placed unfair burdens on the American people and drove up the cost of doing business.” He continued: “Our goal is to protect America’s water resources consistent with the law of the land while empowering American farmers, landowners, entrepreneurs, and families to help Power the Great American Comeback.”
For the foreseeable future, entities potentially subject to the CWA will need to continue monitoring legal developments to understand the scope of federal jurisdiction. For more information, guidance and updates, please contact Brownstein.
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Tracking the Meaning of WOTUS through the Years
In case you might need a refresher, here’s a breakdown of what it means to be a WOTUS through the last 20 years.
2006 – In Rapanos v. United States, SCOTUS handed down a 4-1-4 ruling that called into question the application of a 1986 rule. Rapanos v. United States, 547 U.S. 715 (2006). This SCOTUS decision implemented two competing standards for defining WOTUS.
Under the “relatively permanent flow” standard in Justice Scalia’s plurality opinion, WOTUS are “relatively permanent, standing or continuously flowing bodies of water” that are connected to traditional navigable waters, as well as wetlands with a “continuous surface connection” to such waterbodies.
Under the “significant nexus” standard in Justice Kennedy’s concurrence, WOTUS are determined based on “the existence of a significant nexus between the wetlands in question and navigable waters in the traditional sense.” Generally, the “significant nexus” standard includes more water bodies than the “relatively permanent” flow standard.
The federal appellate courts adopted differing interpretations of the Rapanos decision, with some courts following the Kennedy concurrence and others applying both Scalia’s plurality and the Kennedy concurrence.
2015 – The Obama administration issued the 2015 Clean Water Rule, which sought to clear up judicial uncertainty about which Rapanos standard applied by clearly focusing on the “significant nexus” standard. This rule faced significant challenges in the courts and was ultimately replaced by the first Trump administration’s Navigable Waters Protection Rule.
2020 – The first Trump administration adopted the 2020 Navigable Waters Protection Rule, which rejected the expanded definition of WOTUS adopted by the Obama administration, codifying instead Justice Scalia’s “relatively permanent” flow standard.
This rule clarified that “the phrase [‘the waters of the United States’] does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.” Rapanos, 547 U.S. at 739. In the arid West, the new rule’s exclusion of ephemeral features—waters that flow only when it rains or snows—eliminated a significant number of previously eligible waterways from CWA-protection. The resulting gap in federal protection would need to be filled by state regulatory efforts.
The 2020 Navigable Waters Protection Rule faced court challenges almost immediately, and its implementation was stayed by a Colorado district court judge. The Colorado stay was reversed by the Tenth Circuit on procedural grounds in March 2021. Several months later, an Arizona district court judge vacated the 2020 Navigable Waters Protection Rule. The EPA and Corps treated that vacatur as invalidating the rule nationwide.
2023 – Prior to the Sacket II decision, the Biden administration issued a Revised Definition of WOTUS that returned to the 2015 Clean Water Rule framework.
Two months later, the Sackett majority effectively invalidated parts of the Revised Definition that were based on the “significant nexus” standard. In Sackett II, Justice Alito wrote for a 5-4 majority and “conclude[d] that the Rapanos plurality was correct,” rejecting Justice Kennedy’s “significant nexus” standard as “particularly implausible,” a “theory,” and unarticulated within the statutory text of the CWA. Sackett II, 598 U.S. at 680.
In response, the Biden administration issued the 2023 Conforming Rule and struck references to the “significant nexus” standard. Instead, the rule embraced the “relatively permanent” flow standard. It included tributaries only if they are “relatively permanent, standing or continuously flowing bodies of water”; wetlands that are adjacent to “relatively permanent, standing or continuously flowing bodies of water identified [as a jurisdictional impoundment or tributary] and with a continuous surface connection to those waters”; and intrastate lakes and ponds that are “relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to [traditional interstate waters or jurisdictional tributaries].”
2025 – EPA announces interim guidance and intent to conduct a WOTUS rulemaking. Here we WOTUS again!
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This document is intended to provide you with general information regarding revisions to the rule defining "Waters of the United States." The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.