By James D. Bradbury, PLLC, and Mattie Meyring, Texas A&M University School of Law
The definition of “waters of the United States” (or WOTUS, for short) determines which waters are federally regulated under the Clean Water Act. Depending on whether a waterbody is considered a WOTUS, certain agricultural activities affecting that waterbody may be subject to additional regulation or require a permit.
The definition of WOTUS has been the subject of litigation and changing regulations for years. Most recently, the U.S. Supreme Court’s 2023 decision in Sackett v. EPA limited which wetlands can be regulated by the federal government. In November 2025, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) proposed a new WOTUS definition intended to implement Sackett. The goal of the proposed rule is to provide landowners with clearer rules for determining which waters are federally regulated.
The 2025 proposed rule contains several changes important to agriculture. The proposed rule would make it easier for farmers and ranchers to determine whether previously converted cropland is excluded from federal Clean Water Act regulation. It would also exclude ditches constructed or excavated entirely in dry land, regardless of flow, from federal regulation. The proposed rule would leave existing Clean Water Act exceptions for routine types of agricultural activities unchanged.
On Sept. 6, EPA and USACE announced a supplemental proposed rule. The supplemental proposal does not modify the rule proposed in 2025. Instead, it asks for additional public input before the agencies develop a final WOTUS rule. The agencies are seeking comments on how to define “perennial,” “relatively permanent” and “continuous surface connection.”
These definitions matter for farmers and ranchers because they help determine where federal Clean Water Act requirements begin and end. The common-sense, straightforward approach to the definition of WOTUS suggested by the rule could reduce uncertainty for producers managing ditches, wetlands and other water features on agricultural land. This added clarity could also ease bureaucratic barriers to agricultural production and growth.
The EPA and USACE will accept comments on the supplemental proposal for 30 days after it is published in the Federal Register. The agencies will consider those comments along with comments received on the 2025 proposal before issuing a final rule. Details about the comment process can be found on EPA’s WOTUS page.
