Overview
- Released in pre-publication on Nov. 17, the proposal now moves into a public comment period before any final rule is issued.
- Agencies define key terms drawn from Sackett, including a two-part test for a continuous surface connection, a "relatively permanent" standard that can be met year-round or during a wet season, and a tributary definition requiring bed, bank, and relatively permanent flow.
- The rule would eliminate the stand-alone interstate waters category and remove the "intrastate" label for lakes and ponds, making jurisdiction hinge on permanence and surface connection to traditional navigable waters or the territorial seas.
- The proposal adds explicit exclusions for groundwater, ephemeral waters, and most ditches dug entirely in dry land—while keeping tidal or navigable ditches in— and it codifies that all components of waste treatment systems are not WOTUS.
- Industry groups and some landowners highlight desired regulatory certainty, while environmental advocates warn the narrower scope could reduce protections for wetlands and drinking water, with some estimates projecting tens of millions of acres of wetlands losing federal coverage.