EPA Proposes Narrower 'WOTUS' Definition Post-Sackett

Following the Supreme Court's 2023 decision in Sackett v. EPA, the Environmental Protection Agency and the US Army Corps of Engineers have released a supplemental proposal to significantly narrow the definition of 'waters of the United States' (WOTUS) under the Clean Water Act. The proposal seeks to codify the Court's new, more restrictive jurisdictional test by defining what constitutes a 'relatively permanent' body of water and when a wetland has a 'continuous surface connection' to a covered water. This change is critical for clients in industries like real estate development, energy, and infrastructure, as the proposed definitions—which focus on perennial, or near-daily, surface water—would drastically reduce the number of wetlands subject to federal jurisdiction and permitting. The agencies acknowledge that a majority of currently jurisdictional wetlands might not meet this new standard. Counsel should advise clients with current or planned projects to assess their permitting strategies in light of this potential shift from federal to state-level regulation. The public comment period for the supplemental proposal is open until October 9, 2026, offering a window to provide input before a final rule is adopted.