On November 17, 2025, the U.S. Environmental Protection Agency and the U.S. Department of the Army, Corps of Engineers announced a proposed rule to clarify the definition of "waters of the United States" (WOTUS) under the Clean Water Act. The proposal aims to fully implement the Supreme Court’s decision in Sackett v. Environmental Protection Agency, 598 U.S. 651 (2023). The proposed rule was published in the Federal Register on November 20, 2025, with a public comment period ending January 5, 2026.
The new WOTUS rule would narrow federal jurisdiction and protection under the Clean Water Act to streams, lakes, and wetlands. While intended to align with the Sackett decision, critics note that it goes further by reducing protections for wetlands and intermittent waters that lack continuous surface connectivity with existing WOTUS. This change could remove federal safeguards from approximately 55 million acres of wetlands nationwide, leaving only about 19% eligible for protection.
Tribal governments may face significant challenges as a result of these changes. The proposal alters how ditches and Section 404 permitting are handled, which could leave many Tribal waters unprotected. Although Tribal Nations can regulate waters within their lands, they do not have authority over upstream sources of pollution. As a result, federal protections remain important for preserving cultural practices linked to Tribal waters. Many Tribal environmental agencies may also struggle to develop their own regulations due to limited resources.
Tribal leaders are encouraged to review the proposed rule and submit comments before January 5, 2026. They are advised to address how changes might affect waters on their land as well as economic and cultural impacts; share examples related to reserved rights or culturally significant water bodies; discuss implementation realities; highlight both positive and negative aspects; and focus on issues most relevant to their communities.
Potential concerns include restrictive definitions such as “tributary,” vague requirements like what constitutes a “wet season,” jurisdictional cut-offs that end protection if downstream connections are lost, and situations where interstate or intertribal waters do not qualify as WOTUS.
Resources for submitting comments include:
- The U.S. Environmental Protection Agency WOTUS Information Page
- The Regulations.gov Comment Submission Page
- The Field Notes from the Headwaters Report (Dec. 1, 2025) – Native American Rights Fund
