Federal agencies advanced a series of significant Clean Water Act rulemakings between November 2025 and January 2026 that affect the scope of federal jurisdiction over waters and wetlands, the role of states and tribes in water quality certification, and the availability of streamlined federal permits. These actions include a proposed revision to the definition of “waters of the United States” in response to the U.S. Supreme Court’s decision in Sackett v. EPA, proposed amendments to EPA’s Clean Water Act Section 401 water quality certification regulations, and a final rule by the U.S. Army Corps of Engineers reissuing nationwide permits under Sections 404 of the Clean Water Act and 10 of the Rivers and Harbors Act. These rulemakings have the potential to recalibrate Clean Water Act jurisdiction with direct implications for permitting strategy, project timelines, and compliance risk; clients with pending or planned projects should consider evaluating potential impacts and contacting Fredrikson’s environmental team to discuss next steps.
1. Proposed Rule Redefining Federal Jurisdiction Under the Clean Water Act (WOTUS)
On November 20, 2025, the agencies published a proposed rule to clarify the scope of federal jurisdiction under the Federal Water Pollution Control Act, as amended (the Clean Water Act or CWA), in response to the U.S. Supreme Court’s May 2023 decision in Sackett v. EPA, 598 U.S. 651 (2023). 52,498 Fed. Reg. (Nov. 20, 2025).
By way of background, in January 2023 the agencies, under the Biden administration, adopted a revised definition of “waters of the United States” (WOTUS)—the term that defines the reach of federal authority over wetlands and other waterbodies under the CWA. That rule broadly asserted jurisdiction over wetlands with merely a “significant nexus” to traditionally navigable waters (TNWs). In Sackett, the Supreme Court rejected this approach, holding that the CWA covers only “relatively permanent waters” (such as streams, rivers and lakes) connected to TNWs, and wetlands that have a “continuous surface connection” to such waters. In response, the agencies issued a “conforming rule,” 88 Fed. Reg. 61,964 (Sept. 8, 2023), removing all references to the “significant nexus” basis for jurisdiction. However, the agencies, under the Trump administration, determined the conforming rule was insufficient; hence, the current proposed rule redefining WOTUS.
The proposed rule introduces several new definitions and jurisdictional clarifications. It defines “relatively permanent” waters as “standing or continuously flowing bodies of surface water that are standing or continuously flowing year-round or at least during the wet season” (the rule does not define “wet season”). The proposed rule defines “continuous surface connection” through a two-part test for wetlands: the wetland must (1) have surface water “at least during the wet season,” and (2) be “abutting (i.e., touching) a jurisdictional water.” In addition, the rule defines “tributary” as “a body of water with relatively permanent flow, and a bed and banks, that connects to a downstream traditional navigable water or the territorial seas, either directly or through one or more waters or features that convey relatively permanent flow.” The preamble clarifies that the connecting “water or features” may not be non-jurisdictional channelized features such as culverts, dams or wetlands lacking relatively permanent flow, but that wetlands with relatively permanent flow may themselves serve as part of the connection.
The proposed rule also makes several notable scope adjustments. It expands the existing exclusion for ditches—defined as “constructed or excavated channel[s] used to convey water”—by removing the existing clause that excludes only those ditches lacking relatively permanent flow. It eliminates “interstate waters” as an independent category of jurisdictional waters, clarifying that the mere crossing of state lines no longer establishes federal jurisdiction. Finally, the proposed rule clarifies existing exclusions for waste treatment systems and prior converted cropland, and it adds an explicit exclusion for groundwater.
2. EPA Proposes to Narrow State and Tribal Authority Under CWA Section 401
Second, on January 15, 2026, EPA published a proposed rule revising the Clean Water Act Section 401 water quality certification regulations. 91 Fed. Reg. 1732 (Jan. 15, 2026); see 33 U.S.C. § 1341(a)(1) (Section 401) and 40 C.F.R. pt. 121. The proposed revisions are intended to narrow the scope of state and tribal review under Section 401 by refocusing certification decisions on specific point‑source discharges, rather than the broader “activity as a whole” approach adopted under the Biden administration.
Section 401 requires applicants for a federal permit that may result in a “discharge” to WOTUS to obtain a certification from the affected state (or a treated‑as‑state tribe) confirming that the discharge will comply with applicable water quality standards. Section 401(a)(1). This requirement applies to a wide range of federal authorizations, including Clean Water Act Section 404 permits for dredge‑and‑fill activities and Federal Energy Regulatory Commission licenses, and it gives certifying states and tribes substantial leverage over federally permitted projects, including the authority to impose conditions on the underlying federal permit.
Under the current Biden‑era regulations, certifying authorities must evaluate “whether the activity will comply with applicable water quality requirements” (emphasis added). 40 C.F.R. § 121.3 (2023). That evaluation is expressly framed to include water‑quality‑related impacts from the activity’s “construction and operation,” not merely the discharge itself. As a result, Section 401 review has extended well beyond discrete discharges to encompass broader project‑level impacts.
EPA’s proposed rule would significantly narrow the scope of Section 401 certifications through three principal changes. First, the proposal revises § 121.3 to limit certification review to whether “a discharge from a federally licensed or permitted activity will comply with applicable and appropriate water quality requirements” (emphasis added). The proposed language removes references to “the activity” and its “construction and operation.” For example, under the proposed rule, a Section 401 certification associated with a Section 404 permit would be limited to evaluating the effects of the placement of dredged or fill material into a wetland (i.e., the “discharge”), rather than the broader impacts of the overall project on downstream waters.
In addition, the proposed rule narrows the definition of “applicable water quality requirements.” Under the proposal, that term would be limited to applicable provisions of CWA sections 301, 302, 303, 306 and 307, as well as “applicable and appropriate state or tribal water quality-related regulatory requirements for discharges”; the existing definition goes beyond “discharges” to encompass “…any other water quality-related requirement of state or Tribal law.”
Finally, the proposed rule adds a definition of “discharge,” defined as “a discharge from a point source into waters of the United States.” EPA explains in the preamble that this change is intended to limit Section 401 review to discharges into WOTUS, marking a departure from the current regulations, “which allow certifying authorities in certain circumstances to consider impacts to state waters that are not WOTUS.”
3. Army Corps Finalizes Reissuance of Nationwide Permits
Third, on January 8, 2026, the U.S. Army Corps of Engineers finalized the reissuance of 56 existing Nationwide Permits (NWPs), along with associated general conditions and definitions. 91 Fed. Reg. 768 (Jan. 8, 2026).
NWPs authorize categories of activities under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899 that result in no more than minimal individual and cumulative adverse environmental effects. NWPs are the Corps’ primary form of general permitting and provide a streamlined alternative to obtaining an individual permit. Depending on the activity authorized, applicants may be required to submit a pre‑construction notification to the Corps; for other activities, no notification is required.
The Corps’ final rule includes several notable changes, including the issuance of one new NWP addressing activities intended to improve passage of fish and other aquatic organisms, and the decision not to reissue one existing permit—Nationwide Permit 56, which previously authorized finfish mariculture activities. The 56 reissued NWPs, the one new NWP, and the associated general conditions and definitions, will take effect on March 15, 2026, and will remain in force until March 15, 2031.
If you have questions regarding these changes, please contact Jeremy Greenhouse.
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