Client Advisory: ​“Waters of the U.S.” Redefined: Permitting Impacts of the EPA and Army Corps of Engineers’ Proposed Revisions

On November 17, the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (USACE) announced long-anticipated revisions to the definition of ​“waters of the United States” (WOTUS), which defines the scope of federal jurisdiction under the Clean Water Act (CWA). Establishing a regulatory definition of WOTUS is highly consequential and often controversial because the definition delineates the universe of waterbodies and wetlands that are subject to federal permitting and regulatory requirements and those waters that are regulated by states and/or tribes. The precise contours of the WOTUS definition have changed under each presidential administration, and at least four of those interpretations have been reviewed by the U.S. Supreme Court.

This proposal represents the Trump Administration’s second attempt to promulgate a regulatory definition of WOTUS. The revisions specifically respond to the Supreme Court’s most recent WOTUS decision, Sackett v. EPA (2023), which adopted a narrower interpretation of the term ​“WOTUS” and therefore limited federal jurisdiction to traditionally navigable waters and certain relatively permanent waterbodies and wetlands that are connected to traditionally navigable waters through a continuous surface connection.

Read the rest of this client advisory here.