Written by Ellen Essman, Senior Research Associate
On November 20 of this year, the U.S. EPA and Army Corps of Engineers submitted a proposed rule which would once again redefine the term “Waters of the United States,” or WOTUS, under the federal Clean Water Act.
WOTUS woes
In 1972, Congress passed amendments to existing water pollution law, resulting in the federal Clean Water Act (CWA). Ever since the CWA’s passage in the 1970s, there has been debate over which waters fall under the definition of “waters of the United States” and are subject to federal regulation. The classification of WOTUS is controversial because if a body of water is defined as a water of the United States, the farmers, ranchers, businesses, and other property owners who own the land where the water is located are subject to additional regulations meant to keep the water clean. The fight over the definition of WOTUS eventually made it to the Supreme Court in the early 2000s, and the Court issued tests for determining whether certain bodies of water fell under WOTUS. This was followed by rulemaking from the Obama, Trump, and Biden administrations. The Obama administration took a broad view of which waters the federal government had jurisdiction over, whereas the first Trump administration significantly narrowed the definition. The Biden administration proposed a rule that fell somewhere in between the previous administrations’ definitions of WOTUS. In 2023, the Supreme Court once again took up the issue in the case Sackett v. EPA, limiting the number of wetlands that qualify as WOTUS. The newly proposed rule is the latest in the on-going back and forth between court rulings and presidential administrations on how to tackle the definition of WOTUS. For more background on the WOTUS saga, see our numerous blog posts on the topic, available here.
Newly proposed rule open for public comment
The Trump administration’s newly proposed WOTUS rule was published in the Federal Register late last month. The text of the rule is available here, with the discussion of the revised definition beginning on page 52514 of the Federal Register, or page 6 of the linked PDF document. As with the rule submitted in the first Trump administration, the proposed rule would narrow the definition of WOTUS, resulting in fewer waters being subject to the CWA.
The public has the opportunity to submit comments on the proposed rule through January 5, 2026. To submit a comment, go to the Federal Register site for the proposed rule, available here, and click on the “Submit A Public Comment” button, highlighted in green near the top right-hand side of the page.
