This audio is automatically generated. Please let us know if you have any comments.
Charles Jacobi is an environmental analyst and Merrit Cowden is an environmental project manager at Kimley-Horn, a planning and engineering firm based in Raleigh, North Carolina. Both are located in the company’s office in Fort Worth, Texas. The opinions are the authors’ own.
On November 17, 2025, the Environmental Protection Agency and the US Army Corps of Engineers announced a proposed common sense rule definition of “waters of the United States“ under the Clean Water Act.
Charles Jacobi
Courtesy of Kimley-Horn
In general, the proposed decision seeks to define and clarify the scope of federal jurisdiction over Clean Water Act authorization, which in recent years has been unclear. According to one EPA fact sheetwould guarantee the proposed rule Federal jurisdiction focuses on “relatively permanent, permanent, or continuously flowing bodies of water.”
This language is in the footsteps of the US Supreme Court landmark 2023 decision Sackett v. EPA, that restricted federal jurisdiction under the Clean Water Act by US government waters are limited to “relatively permanent bodies of water” and wetlands that have a “continuous surface connection” to those waters.
Doubling on Sackett
The terms “relatively permanent” and “continuous surface connection” are at the heart of the matter.
Merritt Cowden
Courtesy of Kimley-Horn
The proposed rule would explicitly duplicate the original intent of the Sackett decision: relatively permanent bodies of water are those that exist at least during the “wet season.” The timing and duration of the “wet season” varies by geographic region due to a multitude of hydrologic, environmental, and topographic factors, but the term is intended to describe extended periods of predictable hydrology that occur within a region.
In short, a body of water that does not exhibiting relative permanence during the wet season for a given geographic region would probably not be considered jurisdictional. This applies to tributaries, pools, lakes and ponds. For example, an ephemeral stream that only shows signs of continuous flow for one month of the year in a geographic region with an estimated wet season of three months would probably not be considered jurisdictional. Any wetland, pond or pond that may connect to the ephemeral stream would also be considered non-jurisdictional.
The rule would also require wetlands to meet a new two-part test: In addition to existing during the wet season, a covered water body would also have to be confined to other jurisdictional waters. Prior to the Sackett decision, wetlands could be considered jurisdictional if they had a “significant nexus” with jurisdictional waters. A meaningful nexus analysis would then be used to evaluate the flow characteristics and “relative reach” functions of a stream to determine whether they had a substantial effect on the chemical, physical, or biological integrity of jurisdictional waters.
Given how broad this language was prior to Sackett, centering the jurisdictional scope around the relative permanence and connection of surface waters to jurisdictional waters is an attempt to streamline the analyzes for consultants, landowners, public agencies, and other interested parties.
Significant exclusions for ditches
The new rule also provides clarity on what is considered an “excluded ditch” and proposes significant changes to where ditches can be considered jurisdictional. The proposed new rule excludes ditches that are built or dug in dry land from the jurisdiction.
According to the language published in the Federal Registerthe ditches built or dug in dry land, even if they are connected to other jurisdictional waters, would not have the consideration of competence in the proposed sentence.
This is a significant proposed change: ditches that are built or dug in dryland do not meet the jurisdictional requirements even if they have a relatively permanent flow. As discussed above, relatively permanent water flow is a typical benchmark for jurisdictional scope.
Additionally, groundwater has not historically been considered a jurisdictional water, and the new ruling reiterates this exclusion by adding “groundwater drained by underground drainage systems” in the definition of groundwater.This language is intended to exclude from jurisdiction underground drainage systems, including tile drains and French drains.
The road ahead
If the proposed decision is codified (the public comment window closed on January 6, and a final rule is currently being developed), the regulatory path forward may provide more clarity for developers, consultants, owners and other stakeholders. The language published by EPA and USACE appears to reduce the number of functions that would be under the jurisdiction of the Clean Water Act.
For the purpose of assessing jurisdiction, the proposed rule offers little room for deviation from the reference points of relative permanence and continuous connection of surface waters that originated by the Sackett decision
Landowners and other stakeholders will have clarity on what defines a jurisdictional water feature and what parameters its practice must meet before areas are subject to jurisdiction under the Clean Water Act. Broadly speaking, developers and consultants are expected to have greater clarity in determining which water features may or may not be considered jurisdictional waters at potential project sites.
