Federal agencies advanced a series of Clean Water Act rulemakings in late 2025 and early 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” following the U.S. Supreme Court’s decision in Sackett v. EPA, proposed amendments to Environmental Protection Agency (EPA) 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 Section 10 of the Rivers and Harbors Act.
These regulatory changes could alter how projects are permitted under federal law, potentially impacting project timelines, permitting strategies, and compliance risks for entities with pending or planned projects.
On Nov. 20, 2025, agencies published a proposed rule clarifying federal jurisdiction under the Clean Water Act in response to Sackett v. EPA. The new proposal introduces definitions such as “relatively permanent” waters—those standing or flowing year-round or during wet seasons—and provides criteria for what constitutes a “continuous surface connection” for wetlands to be considered federally regulated. It also expands exclusions for ditches lacking relatively permanent flow, eliminates interstate waters as an independent category for jurisdictional purposes, clarifies existing exclusions related to waste treatment systems and cropland conversions, and adds an explicit exclusion for groundwater.
The EPA also released on Jan. 15, 2026 a proposal narrowing state and tribal authority under Section 401 by limiting certification review strictly to point-source discharges rather than broader project impacts—a shift from previous Biden administration policy that included construction- or operation-related effects within review scope. The revised definition would restrict “applicable water quality requirements” solely to those directly related to discharges into waters defined as WOTUS (Waters of the United States).
Additionally, on Jan. 8, the Army Corps finalized reissuance of nationwide permits (NWPs), streamlining authorization processes for activities deemed minimally impactful under environmental laws through March 2031. Notable updates include one new permit addressing aquatic organism passage improvements while discontinuing another covering finfish mariculture activities.
The implications from these changes are expected to influence regulatory approaches across industries involved with land development or water resources management.
