EPA AND ARMY CORPS OF ENGINEERS RELEASE PRE-PUBLICATION VERSION OF UPDATED DEFINITION OF WATERS OF THE UNITED STATES

November 17, 2025

On November 17, the Environmental Protection Agency and the U.S. Army Corps of Engineers released a pre-publication version of the “Updated Definition of Waters of the United States.” Once the rule is formally published in the Federal Register, the agencies will open a 45-day public comment period.

Background

The term Waters of the United States is used in the Clean Water Act (CWA) to distinguish waters subject to federal jurisdiction from those regulated by states or tribes. The definition applies across several Clean Water Act programs including Section 401 for state water quality certifications, Section 402 for the National Pollutant Discharge Elimination System permit program, and Section 404 for the permitting of dredged or fill material. The scope of federal jurisdiction has been the subject of ongoing debate and multiple rulemakings over the past several years. This proposal is intended to reflect the United States Supreme Court decision in Sackett v Environmental Protection Agency (21-454, decided May 23, 2023) which clarified the limits of federal jurisdiction.

Key elements of the proposed definition

Relatively permanent: Defined as standing or continuously flowing bodies of surface water that are standing or continuously flowing year round or at least during the wet season.

Continuous surface connection:  Defined as having surface water at least during the wet season and abutting which means touching a jurisdictional water.

Tributary: Defined as a body of water with relatively permanent flow, and a bed and banks, that connects to a downstream traditional navigable water or the territorial seas, either directly or through one or more waters or features that convey relatively permanent flow. A tributary does not include a body of water that contributes surface water flow to a downstream jurisdictional water through a feature such as a channelized non jurisdictional surface water feature, subterranean river, culvert, dam, tunnel, or similar artificial feature, or through a debris pile, boulder field, wetland, or similar natural feature if the feature does not convey relatively permanent flow.

Public engagement opportunity

EPA and the U S Army Corps of Engineers plan to host two hybrid public meetings for oral input. Dates, times, locations, virtual access information, and registration will be posted on the following webpage once available here:

https://www.epa.gov/wotus/public-outreach-and-stakeholder-engagement-activities

NWC and Waters of the U.S.: NWC has previously submitted formal comments related to the definition of Waters of the United States, including in April 2025. NWC is currently analyzing the pre-publication proposal for potential implications across navigation, flood control, hydropower, water supply, recreation, and ecosystem restoration interests. Members will receive additional updates when available.

Resources:

Julie A. Ufner
President and CEO
National Waterways Conference (NWC)
703-203-4795 (cell)
waterways.org