WASHINGTON, DC – EPA and the Army are considering a narrower test for determining which streams and wetlands qualify as federally regulated waters, potentially reducing Clean Water Act jurisdiction over some intermittent features that affect farms and ranches.
The supplemental proposal would generally define “relatively permanent” waters as perennial, meaning standing or continuously flowing every day under ordinary conditions. A predictable dry period of up to 30 consecutive days could still qualify.
For producers, the distinction could affect permitting around drainage features, wetlands, and other waters. A feature routinely dry for roughly 90 days each year would not meet the proposed perennial standard.
The agencies are also considering a stricter “continuous surface connection” test for wetlands as they implement the Supreme Court’s 2023 Sackett decision, which rejected the broader significant-nexus approach.
Nothing changes immediately. This is a supplemental proposal, and EPA will accept comments for 30 days after publication in the Federal Register before developing a final rule.
American Farm Bureau Federation President Zippy Duvall said, “Farmers share the goal of protecting the nation’s natural resources, and we’re pleased the EPA and Army Corps put forward a new Waters of the U.S. rule. It respects farmers’ ability to responsibly use their land while ensuring regulations align with the framework established by the Supreme Court’s Sackett ruling.”
“The new WOTUS rule provides a clear understanding of federal jurisdiction, which is critical for farmers who may face severe penalties or even jail time for unknowingly violating the law. While we’re still reviewing the details of the final rule, we’re hopeful that it will prove durable and bring an end to the regulatory back-and-forth farmers have endured during the past decade. America’s families deserve clean water and clear rules, as do the farmers who work to grow the food those families rely on.”
Farm-Level Takeaway: The proposed approach could reduce federal permitting exposure for some intermittent waters while leaving state and Tribal regulation intact.