On November 17, 2025, the U.S. Environmental Protection Agency and the U.S. Department of the Army, Corps of Engineers (Army Corps) announced a proposed rule affecting the reach of the Clean Water Act (CWA) by proposing to “clarify the definition of ‘waters of the United States’ and fully implement the U.S. Supreme Court’s decision in Sackett v. Environmental Protection Agency, 598 U.S. 651 (2023).” The proposed rule was published in the Federal Register (90 Fed. Reg. 52498) on November 20, 2025. There is a 45-day public comment period ending on January 5, 2026.
The proposed waters of the United States (WOTUS) rule narrows federal jurisdiction and protection through the CWA to streams, lakes, and wetlands. While the new rule purports alignment with the Sackett decision, the rule as proposed goes beyond the decision’s language by significantly limiting what wetlands and intermittent waters receive protection. For example, it significantly reduces protections for wetlands lacking continuous surface connectivity with an existing WOTUS — potentially removing safeguards from 55 million acres of valuable wetlands and leaving only 19% of wetlands across the country eligible for federal protection.
For some Tribal governments, this shift could pose serious challenges. For example, the new proposal changes the handling of ditches and Section 404 permitting, leaving many Tribal waters vulnerable. And, while Tribal Nations can regulate waters within their lands, they lack authority over upstream polluters, making federal protections critical for preserving cultural practices tied to Tribal waters. With limited resources compared to federal agencies, Tribal environmental agencies may be stretched thin with developing their own regulations.
The proposed rule was published on November 20, 2025, in the Federal Register, with a 45-day comment period ending January 5, 2026.
Tribal leaders are urged to review the proposed rule, especially the preamble, and submit comment before that January deadline.
Some suggestions for comments include:
- Address impacts on waters on your land as well as economic and cultural impacts.
- Share examples of affected waters on Tribal reserved rights as well as on-reservations, and water bodies that are used for cultural reasons.
- Comment on the realities of implementation and whether Tribes have the required tools.
- Highlight both positive and negative aspects of the proposal.
- It is important to address alternatives that are listed in the proposed rule, but don’t feel compelled to comment on everything. Focus on the things that are most important for you and your community.
Examples of potentials concerns include:
- Restrictive definitions, such as “tributary” that require both a bed and bank.
- Vague requirements, such as the definition of a “wet season.”
- Jurisdictional cut-offs where upstream waters lose protection if downstream water connections are severed.
- Waters that are interstate/intertribal (form boundaries) are not necessarily WOTUS.
Resources for submitting comments:
- U.S. Environmental Protection Agency WOTUS Information Page
- Regulations.gov Comment Submission Page
- Field Notes from the Headwaters Report (Dec. 1, 2025) – Native American Rights Fund
