Redefining WOTUS: What Businesses Need to Know
The definition of 'waters of the United States' (WOTUS) under the Clean Water Act ( CWA ) has long been a point of legal contention and regulatory complexity. The CWA establishes federal jurisdiction over 'navigable waters,' which it defines as '…waters of the United States (WOTUS), including the territorial seas' (Section 502(7).
Recent court decisions—most notably Sackett v. U.S. EPA —and subsequent agency actions have significantly shifted how WOTUS is interpreted and enforced. These changes are poised to influence permitting requirements, compliance expectations, and environmental planning for a range of industries. Below is a summary of the key developments and what they could mean for businesses and environmental professionals moving forward.
WOTUS Before 2025
Sackett v. U.S. EPA (2023) concluded that the U.S. EPA's definitions and utilization of 'adjacent' and 'significant nexus' in the CWA was inconsistent with the structure of the Act. The court affirmed that the Rapanos v. United States (2006) plurality was correct - 'use of 'waters' encompasses 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 court agreed with narrowing non-navigable wetland coverage under the CWA to apply 'when wetlands have 'a continuous surface connection to bodies that are 'waters of the United States' in their own right, so that there is no clear demarcation between 'waters' and wetlands.''
In summary, the CWA gives the U.S. EPA authority over the navigable waters of the U.S. To be considered WOTUS, they must be permanent, standing or continuously flowing bodies of water and have a continuous surface connection; and wetlands must be indistinguishable from adjacent, traditional WOTUS. The U.S. EPA no longer has authority over WOTUS/wetlands under the CWA through previous definitions of 'adjacent' or 'significant nexus'.
What's Changing: March 2025 EPA Announcement
Building on the Sackett decision, the U.S. EPA and the Department of the Army announced on March 12, 2025, that they will review the definition of WOTUS and written recommendations from the public. The CWA does not directly provide a definition for WOTUS; instead, it relies on the definition of 'navigable waters.'. The U.S. EPA committed to defining WOTUS in accordance with the Sackett v U.S. EPA ruling that 'waters' encompasses only those relatively permanent, standing or continuously flowing bodies of water forming streams, oceans, rivers, and lakes.
U.S. EPA Administrator Lee 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. 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.'
Stakeholders who care about how WOTUS is defined—particularly those whose operations intersect with wetlands, waterways, or regulated water use—should pay close attention to the public comment period. This is a key opportunity to provide input that could shape the final definition and influence future permitting and compliance requirements.
What This Means for Clients
While we can only speculate about client impacts until the U.S. EPA releases an initial draft of their WOTUS definition for comment, based on Zeldin's statements and the Sackett v U.S. EPA ruling, this will likely be a win for clients and reduce their overall permitting, compliance costs, and risk.
However, as responsible environmental stewards, we should advise our clients to continue implementing all possible measures to protect sensitive receptors such as wetlands and waterways from environmental impacts, regardless of federal oversight Long-term environmental performance and public perception are still driven by broader sustainability goals and local regulatory frameworks.
What Businesses Should Expect
Business impacts have most likely already been realized, given that these decisions stem from the Sackett v U.S. EPA (2023) ruling. The primary services affected would be limited and primarily centralized around ecological assessments, audits, and construction planning and permitting. Any additional regulatory impacts are expected to be minimal for most businesses or may be balanced by new opportunities created by this ruling, especially since many compliance obligations are still driven by state and other federal regulations.
Key Takeaways and Next Steps
The evolving definition of WOTUS continues to reshape the regulatory landscape for water and wetland protections in the United States. While recent developments point toward reduced federal oversight, this does not eliminate the need for careful planning, sound environmental practices, and awareness of local requirements. Staying ahead of these regulatory shifts ensures that clients can manage risk effectively while continuing to meet sustainability goals.
As more guidance is released, we'll continue to monitor the situation and help our clients navigate the path forward with confidence. In the meantime, we encourage clients to stay informed and participate in the public comment process, especially if proposed changes could directly impact their operations or development plans.
Questions? Our team is happy to help. Reach out today to get answers!
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