Feds Further Shrink Federally Protected Wetlands Under the Clean Water Act

Environment Feds Further Shrink Federally Protected Wetlands Under the Clean Water Act Agencies release proposed new rules to clarity how builders can better comply with 2023 Supreme Court ruling The U.S. Environmental Protection Agency and U.S. Army Corps of Engineers are proposing new guidelines to clarify when wetlands are protected under the Clean Water Act based on the landmark 2023 Sackett v. EPA Supreme Court decision. Confusion about which bodies of water are federally protected from construction impacts under the law as "waters of the United States" has persisted for more than four decades, with definitions challenged in at least three Supreme Court cases, including the most recent Sackett decision in 2023. In that ruling, the court's definition aligned more closely with what had been outlined by Justice Antonin Scalia in the 2006 Rapanos opinion—discarding the “significant nexus” test developed by Justice Anthony Kennedy in the same case. The agencies released a proposed rule in November 2025 to conform with the Supreme Court ruling, which stated that to be federally protected as “waters of the United States” wetlands or other bodies of water must have a continuous connection to navigable surface waters, at least during wet seasons. But EPA’s proposal created additional confusion over what constitutes the “wet season” and where and when those seasons occur, says Larry Liebesman, a former Dept. of Justice attorney who now is a senior advisor at environmental permitting consultant Dawson & Associates. To provide needed clarity, EPA and the Corps released a supplemental proposal on Sept. 4 they say will help the two agencies evaluate more options as they work toward a final rule that fully implements the 2023 Sackett ruling. “I think what they've tried to do is to come down with a more simplified approach that would make it easier for landowners to identify what are relatively permanent waters, what wetlands are contiguous and connected to those waters, and therefore federally regulated, and those that are not,” Liebesman told ENR. Trade groups are generally supportive of the agencies’ latest action. Prianka Sharma, vice president and counsel of regulatory affairs at the American Road and Transportation Builders Association said in an email that based on an initial review, the latest proposal will provide “greater clarity on which transportation construction water features, including certain roadside ditches and drainage features, are subject to federal jurisdiction.” Looking for quick answers on construction and engineering topics? Try Ask ENR, our new smart AI search tool. Ask ENR → The supplemental proposal appears to “draw a clearer line around many seasonal and intermittent features while maintaining federal protections for jurisdictional waters. This is a potentially meaningful improvement for transportation construction projects that have long faced uncertainty over when federal permitting requirements apply,” she said. Kristen Swearingen, vice president of government affairs at the Associated Builders and Contractors, added that it supports “EPA’s efforts to provide greater regulatory certainty, reduce unnecessary permitting delays and ensure federal authority is consistent” with the Sackett ruling. But environmental groups say the latest action will only further erode protections for waters that traditionally have fallen under Clean Water Act jurisdiction, including “perennial” waters that flow virtually every day of the year under ordinary conditions, but have been able to retain that status with a single interruption of no more than 30 consecutive days annually. Wetlands would only be protected where perennial surface water continuously connects them to a protected water body. Only the portion of the wetland that is “indistinguishable” from the water would remain protected, according to the Natural Resources Defense Council. . Jon Devine, group director of freshwater ecosystems, said in a statement that by the agencies’ own analyses, most streams would lose protections, with the western U.S. hit the hardest. “This proposal declares open season on the nation’s waterways,” denying federal protections to virtually all wetlands and more than three-quarters of streams, he said. The public will have 30 days to comment on the new proposal after it is published in the Federal Register. Liebesman speculates that EPA may issue a final rule before the end of the year.