Many of the leading Taking cases have involved challenges to the designation of private property as a federally regulated “wetland.” What is or is not a wetland has been a subject of commentary and litigation since the inception of the wetlands regulatory program. But EPA and the U.S. Army Corps of Engineers (the two leading agencies with wetlands enforcement authority) have proposed revisions to provide certainty and clarity to the definition of “the waters of the United States” to bring it into compliance with the Supreme Court’s 2023 decision in Sackett v. Env’t Prot. Agency, 598 U.S. 651 (2023). Although the rulemaking will not solve all the problems with the Government’s wetlands enforcement program, the rule attempts to provide clear guidance for landowners.
Any comments on the proposed rule are due October 9, 2026.
Background
Historically, the regulation of water pollution in the United States was primarily a state responsibility, with federal involvement limited to ensuring that traditional navigable waters remained unobstructed. In response to increasing pollution, Congress enacted the Clean Water Act (CWA) in 1972, which prohibits the discharge of pollutants into “navigable waters,” defined as “the waters of the United States.”
The Act’s definition of “waters of the United States” has been contentious, leading to varying interpretations and significant litigation over the years.
Sackett v. EPA
Michael and Chantell Sackett purchased property near Priest Lake, Idaho, and began backfilling it with dirt and rocks to prepare for building a home. The EPA issued a compliance order, claiming that the Sacketts’ property contained protected wetlands and that their actions violated the CWA. The EPA demanded restoration of the site, threatening penalties of over $40,000 per day.
The Sacketts challenged the EPA’s jurisdiction, arguing that the wetlands on their property did not constitute “waters of the United States.” The District Court ruled in favor of the EPA, and the Ninth Circuit affirmed, applying the “significant nexus” test. The Supreme Court granted certiorari to determine the proper test for identifying “waters of the United States.”
The Court held that for wetlands to qualify as “waters of the United States,” they must be indistinguishably part of a body of water that itself constitutes “waters” under the CWA—rejecting the EPA’s “significant nexus” test which had been used to assert jurisdiction over wetlands based just on their ecological impact on navigable waters. The Court therefore requires a continuous surface connection to such waters where it is difficult to determine where the jurisdictional water ends and the wetland begins. In contrast, the wetlands on the Sacketts’ property, the Court held, were distinguishable and therefore not subject to federal jurisdiction under the Act.
The proposed rule would add specific definitions intended to clarify the requirements imposed by Sackett:
Existing Definition: 33 CFR § 328.3(c)
1) Wetlands means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.
2) Adjacent means having a continuous surface connection.
3) High tide line means the line of intersection of the land with the water’s surface at the maximum height reached by a rising tide. The high tide line may be determined, in the absence of actual data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, other physical markings or characteristics, vegetation lines, tidal gages, or other suitable means that delineate the general height reached by a rising tide. The line encompasses spring high tides and other high tides that occur with periodic frequency but does not include storm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by strong winds such as those accompanying a hurricane or other intense storm.
4) Ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.
5) Tidal waters means those waters that rise and fall in a predictable and measurable rhythm or cycle due to the gravitational pulls of the moon and sun. Tidal waters end where the rise and fall of the water surface can no longer be practically measured in a predictable rhythm due to masking by hydrologic, wind, or other effects.
Proposed Changes
- Redesignating paragraph (c)(3) as (c)(4);
- Redesignating paragraph (c)(4) as (c)(5);
- Redesignating paragraph (c)(5) as (c)(8); and
- Adding paragraphs (c)(3), (c)(6), and (c)(7).
The revisions and additions read as follows (c) * * *
3) Continuous surface connection means perennial surface water in a wetland that is continuously connected with the surface water in the jurisdictional water such that it is difficult to determine where the jurisdictional water ends and the wetland begins. Temporary interruptions in the surface water connection may occur as the result of anomalous events such as drought or dry spell. A temporary interruption in the surface water connection lasting no more than a single period of up to 30 consecutive days in any given year may also occur as a result of non-anomalous events such as low tide or a regularly occurring dry spell.
6) Perennial means having standing or continuously flowing water every day of the year during ordinary conditions.
7) Relatively permanent means perennial bodies of water. A body of water does not lose its relatively permanent status if it dries up as a result of anomalous events such as drought or dry spell. A body of water also does not lose its relatively permanent status if it dries up for no more than a single period of up to 30 consecutive days in any given year as a result of non-anomalous events resulting in a temporary interruption such as low tide or a regularly occurring dry spell.
What this Means for Landowners
- Landowners will have clear indicators—perennial flow, continuous surface connections, and time-limited interruptions—to determine when federal permits are needed before earthmoving or discharge activities. Previously, the significant-nexus approach subjected “‘almost all waters and wetlands’” to potential regulation because it was “‘often difficult to determine whether a particular piece of property contain[ed] waters of the United States.’” at 669. As a result, landowners could face substantial civil penalties—and, in some circumstances, criminal liability—for getting that jurisdictional line wrong.
- The consistent standard in evaluating bodies of water based on physical evidence is intended to reduce disputes and increase transparency and public trust.
The proposed rule would give landowners something that the previous approach often lacked: a more predictable way to determine when federal jurisdiction attaches. By replacing fact-intensive inquiries with defined physical and temporal criteria.
