New WOTUS rule expected by end of 2025 following listening sessions

A final Waters of the United States rule is expected by the end of 2025 after the EPA and the U.S. Department of the Army recently concluded a series of stakeholder listening sessions.

The nine sessions gathered feedback from groups including farmers, builders and state officials regarding Clean Water Act (CWA) programs that hinge on the WOTUS definition.

EPA Administrator Lee Zeldin emphasized the agencies’ commitment to a clear, practical WOTUS rule that protects water resources while fostering economic growth.

Waters of the United States (WOTUS) is a threshold term seeking to establish the geographic scope of federal jurisdiction over “navigable waters” defined in the CWA. Decades of debate over which waters and their conveyances fall under federal and state permitting authority have followed original 1972 legislation.

A May 2023 Supreme Court decision in Sackett vs. Environmental Protection Agency, viewed as a victory for farmers and private property holders, reversed and remanded a lower court decision requiring an Idaho couple to have a permit from the Army Corps of Engineers to build a house on a plot of land determined to contain a federally protected wetland.

In September 2023, EPA and the Corps of Engineers issued a final rule in response to that decision. The final rule revised January 2023 WOTUS regulatory text to remove all language pertaining to significant nexus, deleted interstate wetlands from the category of interstate waters and amended the definition of “adjacent” to mean “having a continuous surface connection.”

That rule, however, did not provide final resolution. Twenty-six states joined agricultural groups in filing amended complaints, including one filed in November 2023 in the U.S. District Court for the District of North Dakota alleging that the EPA committed violations of the Administrative Procedure Act.

Zeldin said the new final rule, which will be preceded by a public comment period and available on the Federal Register, aims to align with the Sackett v. EPA decision, end regulatory uncertainty, reduce permitting costs and support agricultural producers.

“When it comes to the definition of ‘Waters of the United States,’ EPA has an important responsibility to protect water resources while setting clear and practical rules of the road that accelerate economic growth and opportunity,” Zeldin said in a statement. “These listening sessions gave us real-world perspectives as we work toward a proposed rule that follows the Supreme Court decision in Sackett, ends the regulatory uncertainty and ping-pong that has persisted for years, supports our nation’s farmers who feed and fuel the world, and advances the agency’s Powering the Great American Comeback initiative.”

The National Potato Council has advocated for a clear, narrowly defined WOTUS rule that adheres strictly to the Supreme Court’s interpretations.

“Our potato growers are directly impacted by WOTUS regulations, as ambiguous or overly broad definitions can lead to significant permitting delays, increased costs and uncertainty for essential farming practices,” Chris Olsen, NPC vice president of environmental affairs and a potato grower from Washington, said in a statement. “NPC supports a WOTUS definition that focuses on truly navigable waters and their direct tributaries, ensuring that farmers can continue to manage their land productively without undue federal overreach.

“We commend the EPA and Army for seeking real-world input and will continue to engage in this process to ensure the final rule supports the vital role of U.S. agriculture.”