Trump Administration issues WOTUS permitting guidance clarifying reach

On March 12, 2025, EPA and the Army Corps of Engineers issued a Guidance Memoranda to their field offices to clarify when impacts to wetlands can be regulated under the Clean Water Act to better conform to the Supreme Court’s 2023 Sackett ruling. This guidance reversed the Biden Administration’s interpretation of its 2023 rule and could eliminate the need for a CWA 404 permit for many parts of the country. 

The agencies also issued a Federal Register Notice seeking stakeholder input on addressing key terms for interpreting the reach of the CWA.

The bottom line is that while the guidance provides significant clarification on CWA jurisdiction, there is still much uncertainty on applying these technical terms in the field.

For example, under the prior Biden Administration rule, permittees faced potentially lengthy and expensive permit reviews for impacts to wetlands far removed from flowing steams and rivers and connected only by a discrete non water feature like a ditch or a pipe. Wetlands including prairie potholes and vernal pools dry most of the year could be considered WOTUS based on a feature that lacks any permanent or even intermittent flow. 

The new guidance reduces that burden by:

• Clarifying that under Sackett, a wetland must be “adjacent to” meaning “directly abutting” a traditional navigable water such as a river, lake or stream and must also be hydrologically connected to that water

• Rescinding prior WOTUS rule guidance, training materials and case specific memoranda that assumed a discrete non-jurisdictional feature can establish a hydrologic connection

• Reaffirming that wetlands separated by uplands, a berm, dike or similar feature could not be regulated 

• Reaffirming the Supreme Court’s Rapanos plurality ruling that “wetlands with only an intermittent, physically remote connection to waters of the United States do not have the necessary connection to trigger CWA jurisdiction.”

Will this guidance help expedite environmental and Clean Water Act permits?

Yes, it appears the guidance could help expedite permit review for many energy and development projects. Applicants may no longer be as concerned about permit delays for impacts to hydrologically remote wetlands far removed from and not directly abutting navigable waters.  That could significantly reduce permitting and mitigation costs.

However, while this guidance provides the regulated community with major relief, the agencies recognized that there are still unresolved questions on determining the necessary hydrologic connection between wetlands and navigable waters to find jurisdiction in the field. In fact, the Guidance cites Sackett’s holding that there may be instances where this problem is difficult such as during periods of drought or low tide or where there may be temporary interruptions of a surface connection. 

Thus, the Federal Register Notice issued with the guidance announced listening sessions and solicitation of input on:

• The scope of “relatively permanent waters” and continuous surface connections and to what features these phrases apply, and

• The scope of jurisdictional ditches – that is when a ditch has sufficient flow to be hydrologically connected.

The agencies will also await the result of stakeholder input in deciding whether they need to issue a new WOTUS rule or can just issue more detailed guidance on the 2023 rule to address these technical issues. 

The regulated community needs to closely follow these developments in planning projects.

Larry Liebesman, Esq

Senior Advisor

A nationally recognized environmental lawyer with more than 40 years of experience, including 11 years at the U.S. Justice Department, Larry specializes in federal Clean Water and Endangered Species Acts and the National Environmental Policy Act (NEPA).