Last week, the Environmental Protection Agency followed through from earlier this year and issued an updated definition of Waters of the U.S. (WOTUS), which will restore clarity for property owners. The Biden-era rule had so broadly defined waterways—including ditches, puddles, and trickles—as “navigable” and triggered federal jurisdiction under the Clean Water Act. Ultimately, private property owners struggled to interpret it, at great expense and at risk of jail time. 

The Clean Water Act prohibits discharging pollutants into “navigable waters” without a permit, but the enforcement hangs on the meaning of “navigable waters.” That definition has repeatedly expanded since 1972 to include not only waters usable for trade and travel, but also tributaries and adjacent wetlands, isolated pools, temporary streams, drainage ditches, and more. 

Enter the WOTUS rule, which was initially proposed by the Obama EPA in 2014 and finalized in 2015. The rule broadly defined waters to be those with “significant nexus” to jurisdictional waters, which expanded EPA dominion over minor issues, muddied analysis for property owners, and led to inconsistent application in different regions. The first Trump administration then narrowed the definition in the Navigable Waters Protection Rule, setting several clear categories of jurisdictional waters and excluding others, but the Biden administration issued a new rule in 2023 closer to the Obama-era rule. 

Private property owners with waters, however it’s defined, on their land must obtain a permit. The Pacific Legal Foundation estimated in 2019 that doing so costs an average of 788 days and $271,596. The PLF described the case of the late Joe Robertson, a Navy veteran who dug ponds on his property in Montana, who spent 18 months in prison and paid $130,000 in fines because a trickle of water ran through his property, and the EPA claimed jurisdiction.

In 2023, the U.S. Supreme Court ruled in Sackett v. EPA that the Clean Water Act extends only to wetlands that have a continuous surface connection with other waters of the U.S., finding that the act truly means “only those relatively permanent, standing, or continuously flowing bodies of water.” EPA produced a conforming rule after Sackett, but the underlying issues remain unaddressed. 

The second Trump administration’s 2025 WOTUS definition does the following, according to the fact sheet: 

  • Defines “relatively permanent” under the Sackett decision, focusing on those waters that are standing or continuously flowing year-round or during the “wet season.” 
  • Defines “tributary” and “continuous surface connection,” under the Sackett decision, which creates a new two-part test. 
  • Clarifies what constitutes exclusions for certain ditches, prior converted cropland, waste treatment systems, and groundwater. 

Recalibrating the WOTUS rule to match common-sense ideas about water will protect water quality, cut red tape, and strike a balance for state and local authorities to manage lands and waters closer to home. Public comments will be accepted about the updated WOTUS rule through January 5, 2026.

To learn more about the waters of the United States (WOTUS) rules, go HERE.