Major Rollback to Federal Wetlands Protections Proposed
The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers released a new proposed rule last month that would drastically narrow the definition of “Waters of the United States” (WOTUS) — the cornerstone for determining which wetlands and waterways receive Clean Water Act (CWA) protections. The proposal goes beyond the limitations required under the Supreme Court’s 2023 Sackett v. EPA decision and would significantly scale back federal protections for wetlands and streams nationwide.
According to the agencies’ own regulatory analysis, later reported by E&E News, only 19% of mapped wetlands in the contiguous United States would remain federally protected under the draft rule. Entire regions — particularly the arid West and Southwest — could see federal wetland permitting authority under CWA Section 404 effectively eliminated.
About half of all states rely solely on the federal definition of WOTUS for wetland regulation, meaning many wetlands could lose any regulatory oversight at all. GIS analysis by NRDC released earlier this year found that between 38 million and 70 million acres of wetlands are at risk under modeled scenarios similar to the changes now being proposed.
The proposed rule is open for public comment through January 5, 2026.
What the Proposal Attempts to Do
This new proposal is the agencies’ latest attempt to interpret Sackett, which held that wetlands are federally protected only when they have a “continuous surface connection to a relatively permanent traditional navigable water” such that they are “indistinguishable” from that water. The draft rule tries to refine key terms — particularly relatively permanent, continuous surface connection, and how to treat intermittent and ephemeral streams.
Among the major shifts:
- A new “wet season” concept, which many experts say is poorly defined and unworkable across the nation’s diverse hydrologic regions.
- Consideration of an alternative framework that would remove intermittent and ephemeral streams from the WOTUS definition altogether—leaving only perennial streams and wetlands with continuous flow covered.
- A narrowing of what types of physical connections (e.g., culverts, berms, swales) count toward jurisdiction.
- Large-scale reduction in federal jurisdiction, with particularly steep declines in the West and in states without their own wetland protection laws.
ASFPM and the National Association of Wetland Managers (NAWM) submitted detailed recommendations in April during the agencies’ earlier request for input. Their letter offers science-based solutions on defining “relatively permanent,” clarifying “continuous surface connection,” and improving tools used by field staff.
Why Floodplain Managers Are Concerned
ASFPM has long emphasized that wetlands are foundational to natural floodplain functions. Wetlands store and slow floodwaters, filter pollutants, support habitat, and contribute to groundwater recharge. As federal jurisdiction contracts, development pressure will increase—particularly in states that rely solely on the federal program for wetland protection.
With fewer wetlands falling under Section 404 permitting, floodplain managers could face:
- More fill and development activity in areas that naturally store water
- Greater uncertainty when local decisions must compensate for shrinking federal oversight
- Increased flood risk to communities already struggling with repetitive losses
- Growing responsibility for states, tribes, and local governments to regulate wetlands independently
The proposed rule is likely to be heavily litigated, regardless of its final form. But the near-term implications are clear: a substantial reduction in federal wetland protection. ASFPM encourages members to submit comments by the Jan. 5 deadline. The proposed rule and supplemental material and the portal for comments can be found at FederalRegister.gov with identifier Docket ID No. EPA-HQ-OW-2025-0322. The EPA will also hold three public meetings —both in-person and virtual — on Dec. 10, 15, and 16 to gather input.
