By Shelby Shank
Field Editor

The Environmental Protection Agency (EPA) and the Army Corps of Engineers released a new proposed Waters of the U.S. (WOTUS) rule on Nov. 17 that aims to clarify what water features fall under federal jurisdiction.

For years, there has been confusion over the definition of WOTUS and what constitutes federally regulated waters under the Clean Water Act.

Different administrations have used different definitions, making it difficult to know when a federal permit is required. That confusion has slowed common tasks like installing drainage, building terraces or expanding livestock operations. Some landowners have been forced to seek legal advice to understand whether a water feature on their property is regulated.

The Trump administration’s proposed rule aims to offer clarity by narrowing which waters fall under federal control.

The proposed rule defines terms such as “relatively permanent,” “continuous surface connection” and “tributary” to match what the Clean Water Act and the U.S. Supreme Court have said.

Under the proposed rule, a tributary must have steady, consistent flow to a major waterway to qualify. Wetlands would only be covered if they directly touch and blend into those protected waters for a consistent part of the year.

The rule also keeps important agricultural exclusions in place, such as prior converted cropland, certain ditches and waste treatment systems, and adds a new exclusion for groundwater.

“Clean water is a top priority for farmers and ranchers. We depend on it,” American Farm Bureau Federation President Zippy Duvall said. “We are pleased that the new rule protects critical water sources while respecting the efforts of farmers to protect the natural resources they’ve been entrusted with.”

The proposed rewrite also reflects the U.S. Supreme Court’s decision in Sackett v. EPA, which limited federal authority over many wetlands and criticized the government’s previous overreach.

“The Supreme Court clearly ruled several years ago that the government overreached in its interpretation of what fell under federal guidelines,” Duvall said. “We are still reviewing the entire rule, but we are pleased that it finally addresses those concerns and takes steps to provide much-needed clarity.”

The draft rule also gives states and tribes more authority to manage smaller or isolated waters, while the federal government maintains oversight of larger, more permanent bodies of water.

States are not currently operating under the same rules. Twenty-four states along the coast or Great Lakes are operating under the 2023 WOTUS rule, while the other 26 states near the center and Southeast are following the pre-2015 WOTUS rule.

The proposed rule will be published in the Federal Register, and the public will have 45 days to submit comments through the Federal Register or through Regulations.gov.

EPA and the Army Corps of Engineers will also hold two hybrid public meetings.

“We look forward to providing comments to EPA to ensure farmers can continue to safeguard the environment while growing the food America’s families rely on,” Duvall said.

After the comment period closes, the agencies plan to move quickly toward a final rule that could potentially take effect as early as late February.