On March 12, 2025, as part of a major deregulation effort, the Environmental Protection Agency (EPA) and the Office of the Assistant Secretary of the Army (Corps of Engineers (COE)) took measures to clarify outstanding issues regarding the interpretation and implementation of “waters of the United States” (WOTUS) in light of the US Supreme Court’s 2023 decision in Sackett v. United States, 598 U.S. 651 (2023).
The new measures have important implications for farmers, ranchers, and rural landowners in general. Today’s post concerns the new EPA/COE clarifications concerning WOTUS.
The Sackett “Fallout”
The jurisdiction of wetlands under the Clean Water Act hinges on their connection to another jurisdictional waterbody—either a traditional navigable water or a relatively permanent water connected to a navigable water. The U.S. Supreme Court’s Sackett decision clarified that wetlands must maintain a continuous surface connection to covered waters, aiming to provide greater clarity on wetland jurisdiction. However, prior guidance documents sparked debate by interpreting “continuous surface connection” to include connections via “discrete features,” such as non-jurisdictional ditches, to jurisdictional waters.
While the Sackett ruling limited the features that qualify as WOTUS, many questions remained about applying the decision to specific cases.
Additionally, ongoing litigation concerning the prior administration’s WOTUS rule has created a split throughout the U.S. 23 states and the District of Columbia are applying the 2023 WOTUS rule as amended after the Sackett decision. The states are California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and Wisconsin.
On the other hand, 27 states follow the pre-2015 WOTUS rules, which are consistent with the Sackett decision. These states are Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, West Virginia, and Wyoming.
EPA/COE Guidance
The latest guidance eliminates this ambiguity, requiring wetlands to be either “adjacent” to or directly abutting a jurisdictional water, like a river or tributary, and disqualifying non-jurisdictional intermediaries (such as a ditch) from forming a continuous surface connection. The guidance sets forth a two-part test for determining the jurisdiction of adjacent wetlands: (1) the wetland must be adjacent to a traditionally navigable or “relatively permanent” water connected to a navigable water, and (2) the wetland must possess a continuous surface connection to a jurisdictional water, making it difficult to distinguish the boundaries between them. This clarification removes the “discrete feature” standard previously used.
Listening Sessions
The EPA also has plans for the agencies to host listening sessions throughout March and April to gather public input and address remaining implementation challenges following the Sackett decision. These initiatives aim to support the development of (a) clear and robust legal standards for identifying jurisdictional features covered under the Clean Water Act and (b) practical, transparent, and predictable approaches for applying WOTUS identification principles in the field.
Input is sought on the following issues:
- Relatively Permanent Waters: Feedback is sought on the characteristics—such as flow regime, duration, seasonality, and others—that should define “relatively permanent” waters.
- Continuous Surface Connection: Although the new guidance rejects discrete features as a basis for jurisdiction, questions remain about what constitutes “abutting” a jurisdictional water. Input is requested on whether wetlands behind natural berms or landforms qualify as “abutting” and whether artificial structures like pumps or flood controls might exclude wetlands from Clean Water Act jurisdiction.
- Jurisdictional Ditches: Public comments are invited on whether factors like flow regime, physical features, excavation locations, biological indicators (e.g., fish presence), or other traits make a ditch jurisdictional.
These sessions aim to refine the implementation of WOTUS regulations and ensure clarity and consistency across states. They will be conducted both in person and via live streaming. Those wishing to present comments will be selected on a first-come, first-served basis and must limit their remarks to three minutes. Information from the listening sessions will be collected to aid EPA/COE in drafting and implementing regulations.
Conclusion
Farmers, ranchers, and rural landowners generally view the EPA’s March 12 action as a positive development. By narrowing federal oversight, the rule empowers local and state governments to manage water resources—a more practical and less burdensome approach that has the potential to lower costs for agricultural operations and other rural landowners. One impact could be enhanced economic growth in rural communities. Overall, the updates mark a significant shift in the regulatory landscape, focusing on balancing environmental protection and property rights.
Read more of Roger McEowen’s thoughts on agricultural law and policy issues that matter to farmers and ranchers on his RFD Business Blog, Firm to Farm.
