Clean Water Act in Flux

In this episode, we unpack the EPA and Army Corps’ proposed changes to the definition of “waters of the United States” under the Clean Water Act—a shift that could reshape federal jurisdiction and impact industries from construction to agriculture. With fewer permits and reduced oversight on the horizon, we explore what this means for businesses, environmental protections, and the regulatory landscape moving forward.

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• EPA and Army Corps Propose Narrower Definition of “Waters of the United States”

About the authors

• Lisa Rushton
• Ana Maria Gutiérrez
• Michael D. Miller
• Grace Hearn

Transcript

Welcome to Womble Perspectives, where we explore a wide range of topics, from the latest legal updates to industry trends to the business of law. Our team of lawyers, professionals and occasional outside guests will take you through the most pressing issues facing businesses today and provide practical and actionable advice to help you navigate the ever changing legal landscape.

With a focus on innovation, collaboration and client service. We are committed to delivering exceptional value to our clients and to the communities we serve. And now our latest episode.

Host 1:

In today’s episode, we’re tackling a regulatory update that could impact everything from construction projects to agriculture: the proposed changes to the definition of “waters of the United States,” or WOTUS.

Host 2:

Yeah, so the EPA and the Army Corps of Engineers dropped this proposed rule on November 20, 2025, and it’s all about redefining what counts as WOTUS under the Clean Water Act.

Host 1:

So, why does this matter? Well, WOTUS determines the scope of federal jurisdiction for key Clean Water Act programs, like permits for discharges and construction. If fewer waterbodies fall under that definition, it means fewer permits, shorter timelines, and potentially lower costs for businesses.

Host 2:

Exactly. And the agencies are saying this new rule will likely reduce federal jurisdiction. That’s a big deal for industries like construction, energy, and agriculture. But it also means less federal oversight of certain waters, which could raise environmental concerns.

Host 1:

Let’s back up for a second. The Clean Water Act regulates “navigable waters,” but it never actually defined WOTUS. Over the years, we’ve had rulemakings, court decisions, and even injunctions creating a lot of confusion.

Host 2:

And then came the Supreme Court’s Sackett decision in 2023, which narrowed federal jurisdiction over wetlands. This proposed rule is basically the agencies’ way of aligning with that decision.

Host 1:

So, what’s changing? First, they’re removing “interstate waters” from the definition of WOTUS. That’s a big shift. Then they’re adding new definitions for terms like “Relatively Permanent,” “Tributary,” and “Continuous Surface Connection.”

Host 2:

That might sound a little like legalese, so let’s break it down. For example, “Relatively Permanent” means waters that are standing or flowing year-round or at least during the wet season. So, ephemeral streams—those that only flow after rain—are out.

Host 1:

Right, and “Tributary” now has to have relatively permanent flow and connect to a navigable water. If there’s a break in that flow, jurisdiction is severed. That’s going to matter a lot in arid regions and mountainous areas.

Host 2:

And then there’s “Continuous Surface Connection.” Wetlands now need to have surface water during the wet season and physically touch another WOTUS. If they don’t, they’re out. The agencies estimate only 19% of wetlands will remain jurisdictional under this rule.

Host 1:

That’s a sizeable reduction. So, fewer permits, less federal oversight, and maybe lower costs for developers. But also, less protection for certain wetlands and streams.

Bottom line: This rule could bring clarity after years of confusion, but it also reshapes the regulatory landscape in a big way.

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