Waters of the United States: Which Rule Applies in Your State

Key points

• Why the definition matters: EPA says many Clean Water Act programs apply only to 'waters of the United States,' and that CWA programs including Water Quality Standards, Total Maximum Daily Loads (TMDLs), and sections 311, 402 and 404 address 'navigable waters,' which the statute defines as 'the waters of the United States, including the territorial seas.' So whether a pond site contains WOTUS decides whether these federal programs reach it. State programs may still apply.

  EPA, About Waters of the United States (web page); CWA sec. 502(7) [1]
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  Many Clean Water Act programs apply only to "waters of the United States." ... Clean Water Act programs, including Water Quality Standards, Total Maximum Daily Loads (TMDLs), and sections 311, 402, and 404 address "navigable waters," defined in the statute as "the waters of the United States, including the territorial seas."

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• StatusFINAL / IN FORCE (as of EPA's page last updated September 9, 2026): Because of litigation over the January 2023 Rule, EPA and the Army are implementing the January 2023 Rule as amended by the September 2023 conforming rule (the 'Amended 2023 Rule', 33 CFR 328.3 / 40 CFR 120.2) in 24 states, the District of Columbia, and the U.S. Territories. In the other 26 states they interpret 'waters of the United States' consistent with the pre-2015 regulatory regime and the Supreme Court's Sackett decision 'until further notice.' So the federal definition a pond builder faces depends on the state the pond is in.

  Applies when: Any project in any U.S. state, DC, or territory that may discharge dredged or fill material or other pollutants into a water EPA, Definition of "Waters of the United States": Rule Status and Litigation Update (web page) [2]
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  As a result of ongoing litigation on the January 2023 Rule, the agencies are implementing the January 2023 Rule, as amended by the conforming rule, in 24 states, the District of Columbia, and the U.S. Territories. In the other 26 states, the agencies are interpreting "waters of the United States" consistent with the pre-2015 regulatory regime and the Supreme Court's decision in Sackett until further notice.

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• StatusFINAL / IN FORCE: The 26 states where the pre-2015 regulatory regime (interpreted consistent with Sackett) is applied are the two states covered by the S.D. Texas injunction of March 19, 2023 (Idaho and Texas) plus the 24 states covered by the D. North Dakota injunction of April 12, 2023: Alabama, Alaska, Arkansas, Florida, Georgia, Iowa, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia and Wyoming. Full pre-2015 list (26): AL, AK, AR, FL, GA, ID, IN, IA, KS, LA, MS, MO, MT, NE, NH, ND, OH, OK, SC, SD, TN, TX, UT, VA, WV, WY.

  Applies when: Pond sites located in one of these 26 states EPA, Rule Status and Litigation Update (web page), Background [2]
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  On March 19, 2023, a district court judge for the Southern District of Texas issued an order preliminarily enjoining in Idaho and Texas the January 2023 Rule. Subsequently, on April 12, 2023, a district court judge in North Dakota issued an order preliminarily enjoining in 24 states the January 2023 Rule ... These states include Alabama, Alaska, Arkansas, Florida, Georgia, Iowa, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia and Wyoming.

  Open U.S. Environmental Protection Agency (opens in a new tab)

• StatusFINAL / IN FORCE: The 24 states where the Amended 2023 Rule (current 33 CFR 328.3 / 40 CFR 120.2) is operative, plus DC and the U.S. Territories, are the states not named in either injunction: Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, Wisconsin. EPA says its state map is informational only and cannot be relied on for specific determinations.

  Applies when: Pond sites located in one of these 24 states, DC, or a U.S. territory EPA, Rule Status and Litigation Update (web page), map note [2]
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  As a result of ongoing litigation on the January 2023 Rule, the agencies are implementing the January 2023 Rule, as amended by the conforming rule, in 24 states, the District of Columbia, and the U.S. Territories. ... EPA is providing the below map for informational purposes only to illustrate which definition of "waters of the United States" is generally operative in each state across the country as a result of litigation challenging the 2023 Rule, and it cannot be relied on for specific determinations or other legal purposes.

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• StatusFINAL / IN FORCE: Kentucky. On May 10, 2023, in separate litigation (Commonwealth of Kentucky v. EPA, No. 23-5343; Kentucky Chamber of Commerce v. EPA, No. 23-5345), the Sixth Circuit granted the motions of Kentucky and the business plaintiffs-appellants for a stay pending their appeal of a district court decision. While that stay was in effect, the agencies applied the pre-2015 regime in Kentucky and to those plaintiffs and their members. On September 23, 2024 the Sixth Circuit issued a mandate lifting its stay order. As of that date the Amended 2023 Rule is operative in Kentucky and for those plaintiffs and their members, except in jurisdictions where the rule is preliminarily enjoined under court orders in other litigation.

  Applies when: Projects in Kentucky, or by members of the listed business plaintiffs EPA, Rule Status and Litigation Update (web page); Commonwealth of Kentucky v. EPA (6th Cir. No. 23-5343) and Kentucky Chamber of Commerce v. EPA (6th Cir. No. 23-5345) [2]
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  On May 10, 2023, the U.S. Court of Appeals for the Sixth Circuit issued an order granting the motions of Kentucky and plaintiffs-appellants for a stay pending appeal ... While the stay was in effect, the agencies interpreted "waters of the United States" consistent with the pre-2015 regulatory regime in Kentucky ... On September 23, 2024, the Sixth Circuit issued a mandate lifting its stay order, and as of that date, the amended 2023 rule is operative in Kentucky and for the plaintiffs-appellants and their members (except in jurisdictions where the rule is preliminary enjoined

  Open U.S. Environmental Protection Agency (opens in a new tab)

• StatusFINAL: The conforming rule 'Revised Definition of "Waters of the United States"; Conforming' (88 FR 61964) took effect September 8, 2023. It revised 33 CFR 328.3 and 40 CFR 120.2 paragraphs (a)(1)(iii), (a)(3) through (5), and (c)(2) and (6) to conform the definition to Sackett. Where the 2023 Rule is not enjoined, the operative definition is this amended text.

  88 FR 61964 (Sept. 8, 2023) [3]
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  DATES: This final rule is effective on September 8, 2023. ... Specifically, the agencies are revising 40 CFR 120.2(a)(1)(iii), (a)(3) through (5), and (c)(2) and (6), and 33 CFR 328.3(a)(1)(iii), (a)(3) through (5), and (c)(2) and (6) to amend aspects of the definition as needed to conform to the Supreme Court's interpretation of the Clean Water Act in Sackett.

  Open EPA and Department of the Army (Federal Register via GPO govinfo) (opens in a new tab)

• RequirementGUIDANCE IN EFFECT (not a regulation): Under both regimes now in effect (the Amended 2023 Rule and the pre-2015 regime consistent with Sackett), the March 12, 2025 EPA/Army memorandum directs field staff to treat only wetlands that directly abut the requisite jurisdictional water as having a continuous surface connection. Wetlands separated by uplands, a berm, a dike, or a similar feature do not qualify. Earlier guidance and training that treated a discrete feature (a non-jurisdictional ditch, swale, pipe, or culvert) as creating a continuous surface connection was rescinded. The guidance took effect immediately and is not legally binding.

  Applies when: All 50 states (both regimes) Memorandum to the Field ... Concerning the Proper Implementation of "Continuous Surface Connection" (EPA and Army, Mar. 12, 2025), at 5 [5]
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  Under either the amended 2023 regulatory definition of "waters of the United States" or the pre-2015 regulatory regime consistent with Sackett, the agencies are interpreting "waters of the United States" to include "only those adjacent wetlands that have a continuous surface connection because they directly abut the [requisite jurisdictional water] (e.g., they are not separated by uplands, a berm, dike, or similar feature)." ... Therefore, any components of guidance or training materials that assumed a discrete feature established a continuous surface connection are rescinded.

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What counts as a water of the United States under the Amended 2023 Rule

EPA's definition is at 40 CFR 120.2 and the Corps' identical definition is at 33 CFR 328.3. It has five categories, which the rule numbers (a)(1) through (a)(5): (a)(1) traditional navigable waters (waters currently used, used in the past or susceptible to use in interstate or foreign commerce, including all tidal waters), the territorial seas and interstate waters; (a)(2) impoundments of waters otherwise defined as waters of the United States, other than impoundments of (a)(5) lakes and ponds; (a)(3) tributaries of (a)(1) waters or (a)(2) impoundments that are relatively permanent, standing or continuously flowing bodies of water; (a)(4) certain adjacent wetlands; and (a)(5) certain intrastate lakes and ponds. [6][9]

An intrastate lake or pond not covered by the first four categories is a water of the United States only if it is relatively permanent, standing or continuously flowing and has a continuous surface connection to an (a)(1) water or an (a)(3) tributary. A covered wetland must be adjacent to an (a)(1) water, or to a relatively permanent (a)(2) impoundment or (a)(3) tributary with which it has a continuous surface connection; "adjacent" means having a continuous surface connection. [3][6][9]

The codified rule does not define "relatively permanent." The 2023 preamble says the standard covers surface water flowing or standing year-round or continuously during certain times of the year (extended periods in the same feature year after year, except in drought), not water that flows or stands only briefly in direct response to precipitation. [7]

Under the conforming rule no water can be found jurisdictional under the "significant nexus" standard, and a wetland cannot be found jurisdictional or "adjacent" just because it is "bordering, contiguous, or neighboring" other waters of the United States or is separated from them by man-made dikes or barriers, natural river berms, beach dunes and the like. The March 2025 guidance also rescinded any parts of earlier guidance or training materials that assumed a discrete feature, such as a non-jurisdictional ditch, swale, pipe or culvert, established a continuous surface connection. Sackett says a barrier separating a wetland from a covered water would ordinarily remove that wetland from federal jurisdiction, but a landowner cannot carve wetlands out of federal jurisdiction by illegally building a barrier on covered wetlands. [3][4][5]

The 2023 preamble says impounding a water of the United States, for example with a dam or levee, does not make it stop being a water of the United States, and that the agencies treat as (a)(2) impoundments both impoundments of a water that was jurisdictional under the 2023 Rule's definition when it was impounded and impoundments of waters that meet (a)(1), (a)(3) or (a)(4) when assessed, regardless of their status when impounded; waters jurisdictional under (a)(5) (lakes and ponds) are the exception to both principles. [7]

• DefinitionFINAL / IN FORCE: EPA's definition of 'waters of the United States' under the 2023 Rule is at 40 CFR 120.2, and the Corps' identical definition is at 33 CFR 328.3. Eight exclusions are codified at paragraph (b), key terms are defined at paragraph (c), and 'adjacent' is defined at (c)(2) as 'having a continuous surface connection.'

  Applies when: States where the Amended 2023 Rule is operative EPA, Current Implementation of Waters of the United States (web page), Current Regulatory Definition; 40 CFR 120.2; 33 CFR 328.3 [9]
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  EPA's regulatory definition of the term "waters of the United States" under the 2023 Rule at 40 CFR 120 is listed below. The Corps' identical definition is at 33 CFR 328.3. ... Eight exclusions from the definition of "waters of the United States" are codified at paragraph (b), and key terms are defined at paragraph (c). "Adjacent" is defined at (c)(2) as "having a continuous surface connection."

  Open U.S. Environmental Protection Agency (opens in a new tab)

• DefinitionFINAL / IN FORCE where the Amended 2023 Rule applies: 33 CFR 328.3(a) begins the definition of 'waters of the United States' with (1) traditional navigable waters (waters currently used, used in the past, or susceptible to use in interstate or foreign commerce, including all tidal waters), the territorial seas, and interstate waters, and (2) impoundments of waters otherwise defined as WOTUS, other than impoundments of (a)(5) lakes and ponds.

  Applies when: States where the Amended 2023 Rule is operative (24 states, DC, territories) 33 CFR 328.3(a)(1)-(2) (current eCFR; 88 FR 3142, Jan. 18, 2023, as amended at 88 FR 61968, Sept. 8, 2023) [6]
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  (a) Waters of the United States means: (1) Waters which are: (i) Currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; (ii) The territorial seas; or (iii) Interstate waters; (2) Impoundments of waters otherwise defined as waters of the United States under this definition, other than impoundments of waters identified under paragraph (a)(5) of this section;

  Open eCFR / Office of the Federal Register (opens in a new tab)

• DefinitionFINAL / IN FORCE where the Amended 2023 Rule applies: (3) Tributaries of (a)(1) waters or (a)(2) impoundments are WOTUS only if they are relatively permanent, standing or continuously flowing bodies of water. (4) Covered wetlands are those adjacent to (a)(1) waters, or to relatively permanent (a)(2) impoundments or (a)(3) tributaries with which they have a continuous surface connection.

  Applies when: States where the Amended 2023 Rule is operative; key test for a drainage to be dammed or wet areas on a pond site 33 CFR 328.3(a)(3)-(4) (current eCFR) [6]
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  (3) Tributaries of waters identified in paragraph (a)(1) or (2) of this section that are relatively permanent, standing or continuously flowing bodies of water; (4) Wetlands adjacent to the following waters: (i) Waters identified in paragraph (a)(1) of this section; or (ii) Relatively permanent, standing or continuously flowing bodies of water identified in paragraph (a)(2) or (a)(3) of this section and with a continuous surface connection to those waters;

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• DefinitionFINAL / IN FORCE where the Amended 2023 Rule applies: (5) Intrastate lakes and ponds not covered by (a)(1)-(4) are WOTUS only if they are relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to an (a)(1) water or an (a)(3) tributary. 'Wetlands' means areas inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil. 'Adjacent' means having a continuous surface connection.

  Applies when: States where the Amended 2023 Rule is operative; existing natural ponds or ponds near streams 33 CFR 328.3(a)(5), (c)(1), (c)(2) (current eCFR) [6]
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  (5) Intrastate lakes and ponds not identified in paragraphs (a)(1) through (4) of this section that are relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to the waters identified in paragraph (a)(1) or (a)(3) of this section. ... (1) Wetlands means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support ... a prevalence of vegetation typically adapted for life in saturated soil conditions. ... (2) Adjacent means having a continuous surface connection.

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• DefinitionFINAL: The conforming rule's preamble says lakes and ponds may still be jurisdictional under paragraph (a)(5) if they do not fall within paragraphs (a)(1) through (3) (for example, they are not tributaries) and they are relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to an (a)(1) water or an (a)(3) tributary.

  Applies when: States where the Amended 2023 Rule is operative 88 FR 61966 n.2 (Sept. 8, 2023) [3]
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  Lakes and ponds, however, may still be jurisdictional under paragraph (a)(5) if they do not fall within paragraphs (a)(1) through (3) of the 2023 Rule (for example, if they are not tributaries connected to waters identified in paragraph (a)(1) or (2)) and they are relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to the waters identified in paragraph (a)(1) or (3).

  Open EPA and Department of the Army (Federal Register via GPO govinfo) (opens in a new tab)

• DefinitionFINAL rule preamble (interpretation of 'relatively permanent'; the term is not defined in the codified Amended 2023 Rule): Relatively permanent waters are surface waters with flowing or standing water year-round or continuously during certain times of the year. They do not include waters that flow or stand only for a short time in direct response to precipitation. 'Certain times of the year' means extended periods of standing or continuously flowing water in the same feature year after year, except in times of drought.

  Applies when: Deciding whether a drainage to be dammed is a jurisdictional (a)(3) tributary in Amended-2023-Rule states 88 FR 3004, 3084-85 (Jan. 18, 2023) (preamble, sec. IV.C.4.c.ii) [7]
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  Specifically, under this rule the relatively permanent standard encompasses surface waters that have flowing or standing water year-round or continuously during certain times of the year. Relatively permanent waters do not include surface waters with flowing or standing water for only a short duration in direct response to precipitation. ... The phrase ``certain times of the year'' is intended to include extended periods of standing or continuously flowing water occurring in the same geographic feature year after year, except in times of drought.

  Open Federal Register (govinfo) (opens in a new tab)

• RequirementFINAL: Under the conforming rule, waters cannot be found jurisdictional under the 'significant nexus' standard. Wetlands also cannot be found jurisdictional or 'adjacent' solely because they are 'bordering, contiguous, or neighboring' or are separated from other waters by man-made dikes or barriers, natural river berms, beach dunes and the like.

  88 FR 61966 (Sept. 8, 2023), sec. I [3]
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  In addition, under the decision in Sackett, wetlands are not defined as ``adjacent'' or jurisdictional under the Clean Water Act solely because they are ``bordering, contiguous, or neighboring . . . [or] separated from other `waters of the United States' by man-made dikes or barriers, natural river berms, beach dunes and the like.'' Therefore, under this conforming rule, waters cannot be found to be jurisdictional because they meet the significant nexus standard; nor can wetlands be found to be jurisdictional based on the definition of ``adjacent'' codified in the 2023 Rule.

  Open EPA and Department of the Army (Federal Register via GPO govinfo) (opens in a new tab)

• DefinitionFINAL rule preamble (interpretation of (a)(2) impoundments): Impoundments are created by discrete structures (often human-built) such as dams or levees. Impounding a water of the United States does not make it non-jurisdictional. The agencies treat as (a)(2) impoundments (1) impoundments of a water that was jurisdictional under the 2023 Rule's definition at the time the impoundment was created, and (2) impoundments of waters that, at the time of assessment, meet (a)(1), (a)(3) or (a)(4), regardless of their status when impounded. Waters jurisdictional only under (a)(5) (lakes and ponds) are the exception to these two principles. So a pond made by damming a jurisdictional (for example, relatively permanent) stream generally remains a water of the United States.

  Applies when: Embankment (dam) ponds built across a drainage, in Amended-2023-Rule states 88 FR 3004, 3075 (Jan. 18, 2023) (preamble, sec. IV.C.3 Impoundments) [7]
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  created by discrete structures (often human-built) like dams or levees ... impoundments do not render ``waters of the United States'' no longer ``waters of the United States.'' ... the agencies consider paragraph (a)(2) impoundments to include (1) impoundments created by impounding one of the ``waters of United States'' that was jurisdictional under this rule's definition at the time the impoundment was created, and (2) impoundments of waters that at the time of assessment meet the definition of ``waters of the United States'' under paragraph (a)(1), (a)(3), or (a)(4) of this rule, regardless of the water's jurisdictional status at the time the impoundment was created. Waters that are jurisdictional under paragraph (a)(5) are the exception to these two implementing principles.

  Open Federal Register (govinfo) (opens in a new tab)

Pond exclusions: ponds dug or diked in dry land (Amended 2023 Rule states)

Eight exclusions are codified at paragraph (b), and they apply even where a feature would otherwise meet paragraphs (a)(2) through (5). The two pond exclusions described at the top of this section are (b)(5), the artificial lakes and ponds exclusion, and (b)(6), the exclusion for artificial reflecting or swimming pools or other small ornamental bodies of water. The codified text sets no acre or volume limit for "small." [6][9]

The 2023 preamble says the agencies' historic practice, which they intend to continue, is to treat an excluded artificial pond as still excluded when it has another incidental beneficial use; its example is a stock-watering pond dug in dry land that waterfowl and other wildlife use heavily. The preamble adds that a pond that meets the exclusion stays non-jurisdictional even if it has a hydrologic surface connection to waters of the United States. But if a pond first used exclusively for stock watering, irrigation, settling basins or rice growing is later used for a different purpose and no longer meets the terms of the exclusion, the preamble says it is no longer excluded, and it is then jurisdictional if it otherwise meets the definition. [7]

Because the artificial lakes and ponds exclusion applies only to features excavated or diked in dry land, the meaning of "dry land" matters. The preamble says "dry land" means areas that do not include waters such as streams, rivers, wetlands, lakes, ponds, tidal waters and ditches; a water is not dry land just because it lacks water at a given time, although an area may remain dry land even if it is wet after a precipitation event. A pond created by diking or excavating in a stream, wetland or other water (even one that lacks water at the time) is therefore not a feature created in dry land and may not qualify for the exclusion; the agencies say features built in land that is not dry are examined more closely to determine whether they are jurisdictional. [7]

Other exclusions that can matter on a pond site: ditches (including roadside ditches) excavated wholly in and draining only dry land and that do not carry a relatively permanent flow of water; artificially irrigated areas that would revert to dry land if irrigation ceased; water-filled depressions created in dry land incidental to construction, and pits excavated in dry land to obtain fill, sand or gravel, unless and until the operation is abandoned and the resulting water body meets the definition; and swales and erosional features (for example, gullies and small washes) characterized by low-volume, infrequent or short-duration flow. [6]

Waste treatment systems designed to meet Clean Water Act requirements, including treatment ponds or lagoons, are excluded. So is prior converted cropland designated by the Secretary of Agriculture, but that exclusion ends upon a change of use (the area is no longer available for producing agricultural commodities), and EPA keeps final authority over Clean Water Act jurisdiction regardless of another federal agency's prior-converted-cropland determination. [6]

• ExemptionFINAL / IN FORCE where the Amended 2023 Rule applies: 'Artificial lakes or ponds created by excavating or diking dry land to collect and retain water and which are used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing' are not waters of the United States, even where they would otherwise meet paragraphs (a)(2) through (5).

  Applies when: Farm/stock/irrigation ponds dug or diked in dry land, in states where the Amended 2023 Rule is operative 33 CFR 328.3(b), (b)(5) (current eCFR) [6]
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  (b) The following are not "waters of the United States" even where they otherwise meet the terms of paragraphs (a)(2) through (5) of this section: ... (5) Artificial lakes or ponds created by excavating or diking dry land to collect and retain water and which are used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing;

  Open eCFR / Office of the Federal Register (opens in a new tab)

• ExemptionFINAL / IN FORCE where the Amended 2023 Rule applies: Also excluded are artificial reflecting or swimming pools or other small ornamental bodies of water created by excavating or diking dry land to retain water for primarily aesthetic reasons. The codified text sets no acre or volume limit for 'small.'

  Applies when: Ornamental or aesthetic ponds dug or diked in dry land, in states where the Amended 2023 Rule is operative 33 CFR 328.3(b)(6) (current eCFR) [6]
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  (6) Artificial reflecting or swimming pools or other small ornamental bodies of water created by excavating or diking dry land to retain water for primarily aesthetic reasons;

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• ExemptionFINAL rule preamble (interpretation): Artificial lakes and ponds are often used for more than one purpose, such as animal habitat, water retention, or recreation. The agencies' historic practice, which they intend to continue, is to treat such a pond as excluded even when it has another incidental beneficial use. Example: a stock-watering pond dug in dry land that waterfowl and other wildlife use heavily.

  Applies when: States where the Amended 2023 Rule is operative 88 FR 3004, 3116 (Jan. 18, 2023) (preamble) [7]
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  The agencies recognize that artificial lakes and ponds are often used for more than one purpose and can have other beneficial purposes, such as animal habitat, water retention, or recreation. For example, artificial lakes and ponds that are created by excavating dry land to collect and retain water for stock watering are often extensively used by waterfowl and other wildlife. The agencies' historic practice, which the agencies intend to continue under this rule, is to consider these features as excluded even when there is another incidental beneficial use of the feature.

  Open Federal Register (govinfo) (opens in a new tab)

• ExemptionFINAL rule preamble (interpretation of the in-force exclusion): If an artificial pond first used only for stock watering, irrigation, settling basins, or rice growing is later used for a different purpose, it is no longer excluded. It is then jurisdictional if it otherwise meets the WOTUS definition.

  Applies when: States where the Amended 2023 Rule is operative Revised Definition of "Waters of the United States," 88 FR 3004, 3116 (Jan. 18, 2023) (preamble, sec. IV.C.7, Implementation of other exclusions) [7]
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  if an artificial pond created by excavating land to collect and retain water is initially used exclusively for stock watering, irrigation, settling basins, or rice growing but is subsequently used for a different purpose ... Consistent with the agencies' longstanding practice, if a previously excluded feature no longer meets the terms of the exclusion, it is no longer excluded. If it no longer satisfies the terms of an exclusion, it would be jurisdictional if it otherwise meets the definition of ``waters of the United States'' under this rule.

  Open Federal Register (govinfo) (opens in a new tab)

• ExemptionFINAL rule preamble (interpretation): The artificial lakes and ponds exclusion applies only to features excavated in dry land or diked in dry land. Paragraph (a)(2) impoundments of waters of the United States, such as a dam across a jurisdictional stream, are not covered by the exclusion. Ponds that meet the exclusion stay non-jurisdictional even if they have a hydrologic surface connection to waters of the United States, and non-jurisdictional conveyances built in dry land that are physically connected to and part of the excluded pond also stay excluded.

  Applies when: Deciding whether a dug-out pond (excavated in dry land) or an embankment pond qualifies for the (b)(5) exclusion in Amended-2023-Rule states 88 FR 3004, 3116 (Jan. 18, 2023) (preamble) [7]
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  Paragraph (a)(2) impoundments are not covered under this exclusion. This exclusion only applies to features that were excavated in dry land or were diked in dry land. Paragraph (a)(2) impoundments are not excavated in dry land or diked in dry land. ... Artificial lakes and ponds that satisfy the terms of the exclusion would not be jurisdictional under this rule even if they have a hydrologic surface connection to ``waters of the United States.'' Non-jurisdictional conveyances created in dry land that are physically connected to and are a part of the excluded feature remain excluded.

  Open Federal Register (govinfo) (opens in a new tab)

• DefinitionFINAL rule preamble (interpretation): 'Dry land' in the exclusions means areas of the geographic landscape that do not include waters such as streams, rivers, wetlands, lakes, ponds, tidal waters, ditches, and the like. Jurisdictional and non-jurisdictional waters are not 'dry land' just because they lack water at a given time, and an area may remain 'dry land' even if it is wet after a precipitation event. The agencies say limiting the exclusions to features constructed in dry land ensures that features constructed in land that is not dry are examined more closely to determine whether they are jurisdictional. Applied to embankment ponds, a pond created by diking or excavating in a stream, wetland or other water (even one that lacks water at the time) is not a feature created in dry land, so it may not qualify for the (b)(5) exclusion.

  Applies when: Siting a pond in a draw, swale, or drainage channel 88 FR 3004, 3111-12 (Jan. 18, 2023) (preamble) [7]
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  The term ``dry land'' refers to areas of the geographic landscape that do not include waters such as streams, rivers, wetlands, lakes, ponds, tidal waters, ditches, and the like. It is important to note that jurisdictional and non-jurisdictional waters are not considered ``dry land'' just because they lack water ... at a given time. Similarly, an area may remain ``dry land'' even if it is wet after a precipitation event. ... Limiting the exclusions in this way also puts reasonable bounds on these categorical exclusions and ensures that features constructed in land that is not dry are examined more closely to determine whether they are jurisdictional.

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• ExemptionFINAL / IN FORCE where the Amended 2023 Rule applies: Excluded ditches are 'ditches (including roadside ditches) excavated wholly in and draining only dry land and that do not carry a relatively permanent flow of water' (the text joins these conditions with 'and'). Artificially irrigated areas that would revert to dry land if irrigation ceased are also excluded.

  Applies when: States where the Amended 2023 Rule is operative; pond inlet/outlet ditches and irrigated fields 33 CFR 328.3(b)(3), (b)(4) (current eCFR) [6]
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  (3) Ditches (including roadside ditches) excavated wholly in and draining only dry land and that do not carry a relatively permanent flow of water; (4) Artificially irrigated areas that would revert to dry land if the irrigation ceased;

  Open eCFR / Office of the Federal Register (opens in a new tab)

• ExemptionFINAL / IN FORCE where the Amended 2023 Rule applies: Also excluded are water-filled depressions created in dry land incidental to construction, and pits dug in dry land for fill, sand, or gravel, unless and until the construction or excavation operation is abandoned and the resulting water body meets the WOTUS definition. Swales and erosional features (e.g., gullies, small washes) with low-volume, infrequent, or short-duration flow are also excluded.

  Applies when: States where the Amended 2023 Rule is operative; borrow pits and gully or swale sites 33 CFR 328.3(b)(7), (b)(8) (current eCFR) [6]
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  (7) Waterfilled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel unless and until the construction or excavation operation is abandoned and the resulting body of water meets the definition of waters of the United States; and (8) Swales and erosional features (e.g., gullies, small washes) characterized by low volume, infrequent, or short duration flow.

  Open eCFR / Office of the Federal Register (opens in a new tab)

• ExemptionFINAL / IN FORCE where the Amended 2023 Rule applies: Waste treatment systems (including treatment ponds or lagoons) designed to meet Clean Water Act requirements are excluded. Prior converted cropland designated by the Secretary of Agriculture is excluded, but the exclusion ends upon a change of use (the area is no longer available for producing agricultural commodities), and EPA keeps final authority over CWA jurisdiction regardless of other federal agencies' prior-converted-cropland determinations.

  Applies when: States where the Amended 2023 Rule is operative; relevant when a pond is sited on farmland designated prior converted cropland (the exclusion ceases upon a change of use; final CWA jurisdictional authority remains with EPA) 33 CFR 328.3(b)(1), (b)(2) (current eCFR) [6]
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  (1) Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act; (2) Prior converted cropland designated by the Secretary of Agriculture. The exclusion would cease upon a change of use, which means that the area is no longer available for the production of agricultural commodities. Notwithstanding the determination of an area's status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA;

  Open eCFR / Office of the Federal Register (opens in a new tab)

The 26 pre-2015 states

In the 26 states marked "pre-2015" in the table, the agencies apply the pre-2015 regulatory text (EPA's former 40 CFR 230.3(s), commonly called the 1986/1988 regulations), which EPA says they interpret consistent with Sackett. That text reaches waters used, used in the past or susceptible to use in interstate or foreign commerce (including tidal waters); all interstate waters, including interstate wetlands; "all other waters" such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes or natural ponds whose use, degradation or destruction could affect interstate or foreign commerce; impoundments of waters otherwise defined as waters of the United States; tributaries of the waters listed above; the territorial sea; and wetlands adjacent to those waters. [8]

It excludes waste treatment systems, including treatment ponds or lagoons designed to meet Clean Water Act requirements (other than certain cooling ponds), and prior converted cropland. Unlike the Amended 2023 Rule, it has no codified exclusion for artificial stock-watering, irrigation, settling-basin or rice-growing ponds, or for artificial reflecting or swimming pools or other small ornamental bodies of water; the 2023 preamble says those features were "generally not considered" waters of the United States, although the Corps and EPA each reserved the right to find a particular one jurisdictional case by case, and that in practice the agencies did not generally assert jurisdiction over them. The 2023 Rule codified these exclusions and removed the case-by-case possibility, but that codification applies only where the Amended 2023 Rule is operative. [7][8]

For comparison, the agencies' September 2026 supplemental proposal (a proposal, not in effect) describes flow durations they have assessed under past and current regimes: at least seasonal flow (e.g., 90 days) under the pre-2015 regime, and, under the Amended 2023 Rule, continuous flow during certain times of the year, more than for a short duration in direct response to precipitation. [11]

• DefinitionFINAL / IN FORCE in the 26 pre-2015 states: The pre-2015 regulatory text (EPA's former 40 CFR 230.3(s); commonly referred to as the 1986/1988 regulations, largely in place since 1977 and amended in 1993 to add an exclusion for prior converted cropland) covers waters used, used in the past, or susceptible to use in interstate or foreign commerce (including tidal waters); all interstate waters including interstate wetlands; and 'all other waters' such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds whose use, degradation or destruction could affect interstate or foreign commerce. EPA says the agencies interpret this regime 'consistent with the Supreme Court's decision in Sackett.'

  Applies when: AL, AK, AR, FL, GA, ID, IN, IA, KS, LA, MS, MO, MT, NE, NH, ND, OH, OK, SC, SD, TN, TX, UT, VA, WV, WY Former 40 CFR 230.3(s)(1)-(3) (pre-2015), as quoted on EPA's Pre-2015 Regulatory Regime page [8]
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  The pre-2015 regulations are commonly referred to as the 1986/1988 regulations, but the agencies note that the 1986/1988 regulations have largely been in place since 1977 and were also amended in 1993 to add an exclusion for prior converted cropland. ... All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce

  Open U.S. EPA (opens in a new tab)

• DefinitionFINAL / IN FORCE in the 26 pre-2015 states: The pre-2015 definition also covers all impoundments of waters otherwise defined as WOTUS, tributaries, the territorial sea, and adjacent wetlands. Waste treatment systems (including treatment ponds or lagoons designed to meet CWA requirements, other than certain cooling ponds) and prior converted cropland are not WOTUS. Unlike the Amended 2023 Rule, the pre-2015 regulatory text has no codified exclusion for artificial stock-watering, irrigation, settling-basin or rice-growing ponds, or for artificial reflecting or swimming pools or small ornamental bodies of water (see fed-wotus-033 for how those features were treated).

  Applies when: AL, AK, AR, FL, GA, ID, IN, IA, KS, LA, MS, MO, MT, NE, NH, ND, OH, OK, SC, SD, TN, TX, UT, VA, WV, WY Former 40 CFR 230.3(s)(4)-(7) and PCC provision (pre-2015), as quoted on EPA's Pre-2015 Regulatory Regime page [8]
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  All impoundments of waters otherwise defined as waters of the United States ... Tributaries of waters identified in paragraphs (s)(1) through (4) of this section; The territorial sea; Wetlands adjacent to waters ... identified in paragraphs (s)(1) through (6) of this section; waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States. Waters of the United States do not include prior converted cropland.

  Open U.S. EPA (opens in a new tab)

• ExemptionFINAL (pre-2015 regime; applies in the 26 enjoined states): Under the pre-2015 regime, artificial lakes or ponds excavated or diked in dry land and used exclusively for stock watering, irrigation, settling basins or rice growing; artificial reflecting or swimming pools or other small ornamental bodies of water; artificially irrigated areas; and construction or borrow-pit depressions (among other features) were not codified exclusions. The 2023 preamble says they were 'generally not considered' waters of the United States, citing the 1986 preamble (51 FR 41217, Nov. 13, 1986), under which the Corps and EPA each reserved the right to find a particular one jurisdictional case by case. The agencies say that in practice they did not generally assert jurisdiction over them. The 2023 Rule codified these exclusions and removed the case-by-case possibility, but that codification applies only where the Amended 2023 Rule is operative.

  Applies when: Pond sites in the 26 pre-2015 states 88 FR 3004, 3111 (Jan. 18, 2023) (preamble describing 51 FR 41206, 41217 (Nov. 13, 1986)) [7]
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  Under the pre-2015 regulatory regime, the features listed above were generally not considered ``waters of the United States'' even though they were not explicitly excluded by regulation. ... the Corps reserves the right on a case-by-case basis to determine that a particular waterbody within these categories of waters is a water of the United States. EPA also has the right to determine on a case-by-case basis if any of these waters are ... In practice, the agencies did not generally assert jurisdiction over such waters. To provide clarity on which waters are jurisdictional and which are not, and to enhance certainty for the public, the agencies are codifying exclusions for these features in the regulatory text and removing the possibility that these waters could be found jurisdictional on a case-by-case basis.

  Open Federal Register (govinfo) (opens in a new tab)

• PROPOSED-rule context: For comparison, the SNPRM describes the flow durations used for 'relatively permanent' across regimes: at least seasonal flow (e.g., 90 days) under the pre-2015 regime; perennial and intermittent flow under the 2020 NWPR; and, under the Amended 2023 Rule, continuous flow during certain times of the year that lasts longer than a short duration in direct response to precipitation. The agencies say none of these regimes required continuous monitoring.

  91 FR 57284, 57292 (Sept. 9, 2026) [11]
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  The agencies have extensive experience with assessing flow duration, regardless of the threshold, under all regulatory regimes since Rapanos, such as at least seasonal flow (e.g., 90 days) under the pre-2015 regulatory regime, perennial and intermittent flow under the 2020 Navigable Waters Protection Rule, and continuous flow during certain times of the year but more than for a short duration in direct response to precipitation under the Amended 2023 Rule.

  Open EPA and Department of the Army / Federal Register (GPO govinfo) (opens in a new tab)

Getting a jurisdictional determination

An approved jurisdictional determination (AJD) is a Corps document stating whether waters of the United States are present on a parcel (33 CFR 331.2). Under existing Corps policy an AJD is generally valid for five years unless new information warrants revision before it expires, and the definition in effect when the Corps completes it governs, not the one in effect when it was requested. [9]

An unexpired AJD issued under the January 2023 Rule, the Amended 2023 Rule or the pre-2015 regime that is not tied to a permit action is not reopened before it expires unless one of the revision criteria in Corps Regulatory Guidance Letter (RGL) 05-02 is met, but its recipient can ask for a new AJD under the current regime and the Corps will honor the request. EPA directs specific questions about a pending determination or permit to the local Corps District office or EPA. [2][9]

• ProcessFINAL / CURRENT PRACTICE: A landowner can obtain from the Corps an approved jurisdictional determination (AJD), a Corps document stating whether 'waters of the United States' are present on a parcel (33 CFR 331.2). Under existing Corps policy, AJDs are generally valid for five years unless new information warrants revision before they expire. The definition that governs an AJD is the one in effect when the Corps completes it, not when it was requested.

  EPA, Current Implementation of Waters of the United States (web page), Jurisdictional Determinations; 33 CFR 331.2; USACE RGL 05-02 sec. 1(a) [9]
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  An approved jurisdictional determination ("AJD") is a document provided by the Corps stating the presence or absence of "waters of the United States" on a parcel ... See 33 C.F.R. § 331.2. Under existing Corps' policy, AJDs are generally valid for five years unless new information warrants revision prior to the expiration date. ... the agencies' actions are governed by the definition of "waters of the United States" that is in effect at the time the Corps completes an AJD, not by the date of the request for an AJD.

  Open U.S. Environmental Protection Agency (opens in a new tab)

• ProcessFINAL / CURRENT PRACTICE: A recipient of an unexpired AJD may ask for a new AJD under the current regime (the Amended 2023 Rule or the pre-2015 regime consistent with Sackett), and the Corps will honor the request. AJDs completed under the January 2023 Rule, the Amended 2023 Rule, or the pre-2015 regime that are not tied to a permit action are not reopened until they expire unless an RGL 05-02 revision criterion is met.

  EPA, Current Implementation of Waters of the United States (web page), Jurisdictional Determinations [9]
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  AJDs completed under the January 2023 Rule, the Amended 2023 Rule, or the pre-2015 regime and not associated with a permit action will also not be reopened until their expiration date, unless one of the criteria for revision is met under RGL 05-02. Previously issued AJDs that have not expired could also be reopened if the recipient of such an AJD requests that a new AJD be provided pursuant to the current regulatory regime ... In these cases, the Corps will honor such requests.

  Open U.S. Environmental Protection Agency (opens in a new tab)

PROPOSED: the November 2025 proposal and September 2026 supplemental proposal

PROPOSED, not in effect. The "Updated Definition of 'Waters of the United States'" proposal was published Nov. 20, 2025 (90 FR 52498), and its 45-day comment period closed Jan. 5, 2026. The supplemental proposal published Sept. 9, 2026 (91 FR 57284) adds regulatory options on certain aspects of the proposal; comments on it, identified by Docket ID No. EPA-HQ-OW-2025-0322, must be received on or before Oct. 9, 2026 (regulations.gov is the agencies' preferred method), and comments already filed on the November 2025 proposal should not be resubmitted. [10][11]

The November 2025 proposal would delete the interstate-waters category, delete "intrastate" from the lakes-and-ponds category, revise the waste treatment, prior converted cropland and ditch exclusions, add a groundwater exclusion, and add definitions including "relatively permanent," "continuous surface connection" and "tributary." It would leave the artificial-pond and ornamental-pool exclusions as they are. The September 2026 supplemental proposal seeks comment only on alternative definitions of "relatively permanent" and "continuous surface connection" and a new definition of "perennial," and would make no changes to exclusions (b)(4) through (8) other than conforming edits. [11][12]

As proposed in November 2025, "relatively permanent" would mean bodies of surface water standing or continuously flowing year-round or at least during the wet season, and surface water would have to be continuous for the entire wet season; ephemeral waters, which flow or stand only in direct response to precipitation, would not be jurisdictional. In-line lakes and ponds meeting the proposed tributary definition would be jurisdictional as tributaries, while an (a)(5) lake or pond that is not relatively permanent, or lacks the proposed continuous surface connection (surface water at least during the wet season and abutting a jurisdictional water), would not be. A water body that contributes surface flow to a downstream jurisdictional water through a feature such as a culvert, dam, tunnel or similar artificial feature would not be a tributary if that feature does not carry relatively permanent flow. [12]

The proposed ditch exclusion would cover ditches "constructed or excavated entirely in dry land," without the current "draining only dry land" and no-relatively-permanent-flow conditions. Ditches built in tributaries, built to relocate a tributary, or built in wetlands or other aquatic resources would not count as built entirely in dry land, and an excluded ditch may still be a point source, so discharges of pollutants from it could require a Clean Water Act permit. [12]

The September 2026 supplemental option would instead limit "relatively permanent" to perennial waters, with standing or continuously flowing water every day of the year during ordinary conditions. A water would keep that status if it dries up because of anomalous events such as drought or a dry spell, or for no more than a single period of up to 30 consecutive days in any given year because of non-anomalous events such as low tide or a regularly occurring dry spell. In the agencies' examples, a water that lacks standing or flowing water for 30 consecutive days during a dry spell every June would meet the definition, but one that ordinarily lacks it from June through August every year would not be relatively permanent, and one whose flow stops for two separate non-anomalous 10-day periods in a year would not be jurisdictional. The agencies are also considering counting only U.S. Drought Monitor extreme (D3) or exceptional (D4) drought, lasting no more than five continuous years, as anomalous drought. [11]

The supplemental option would also define "continuous surface connection" as perennial surface water in a wetland continuously connected with the surface water in the jurisdictional water so that it is difficult to tell where the jurisdictional water ends and the wetland begins, allowing temporary interruptions from anomalous events such as drought or a dry spell, or a single non-anomalous interruption of up to 30 consecutive days in any given year. The agencies say states and Tribes would be free to address ponds and other features that do not meet the supplemental "relatively permanent" option, and are otherwise not waters of the United States, as state or tribal waters under their own laws to the extent they deem appropriate, and note that some states have laws restricting their ability to be more stringent than federal regulations. [11]

• StatusPROPOSED (not in effect): EPA and the Army announced the signing of the 'Updated Definition of "Waters of the United States"' proposed rule on November 17, 2025. It was published in the Federal Register on November 20, 2025 (90 FR 52498; Docket EPA-HQ-OW-2025-0322), and its 45-day comment period closed January 5, 2026. No final rule had been published as of this research date.

  EPA, Updated Definition of "Waters of the United States" (web page); 90 FR 52498 (Nov. 20, 2025) [10]
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  On November 17, 2025, the agencies announced the signing of a proposed rule to revise the definition of "waters of the United States." ... On November 20, 2025, the proposed rule Updated Definition of "Waters of the United States" published in the Federal Register (FR). The 45-day comment period closed on January 5, 2026.

  Open U.S. EPA (opens in a new tab)

• StatusPROPOSED (not in effect): On September 9, 2026 EPA and the Army published a supplemental notice of proposed rulemaking (SNPRM), 'Updated Definition of "Waters of the United States"', 91 FR 57284-57301, FR Doc. 2026-18317, docket EPA-HQ-OW-2025-0322. It supplements the November 2025 proposal with additional regulatory options. Comments must be received on or before October 9, 2026; regulations.gov is the agencies' preferred method. Commenters should not resubmit comments already filed on the November 2025 proposal.

  Applies when: Public comment open through October 9, 2026 91 FR 57284 (Sept. 9, 2026) [11]
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  ACTION: Supplemental notice of proposed rulemaking. ... the agencies are issuing this notice to supplement the NPRM with additional regulatory options on certain aspects of the proposed rule. DATES: Comments must be received on or before October 9, 2026. ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-OW-2025-0322, by any of the following methods: Federal eRulemaking Portal: https://www.regulations.gov/ (our preferred method). ... commenters should not resubmit comments already provided in response to the agencies' NPRM.

  Open EPA and Department of the Army / Federal Register (GPO govinfo) (opens in a new tab)

• StatusPROPOSED: The SNPRM seeks comment only on alternative definitions of 'relatively permanent' and 'continuous surface connection' and a new definition of 'perennial.' It does not offer new options on removing 'interstate waters,' deleting 'intrastate' from (a)(5), or the proposed exclusions for waste treatment systems, prior converted cropland, ditches, and groundwater. It makes no changes to the existing exclusions in (b)(4) through (8), which include the artificial lakes/ponds exclusion, other than conforming edits.

  91 FR 57284, 57286 (Sept. 9, 2026) (SNPRM sec. V.A) [11]
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  seeking comment on supplemental regulatory options for the revised definitions of ``relatively permanent'' and ``continuous surface connection,'' and adding a definition of the term ``perennial,'' ... In this SNPRM, the agencies are not proposing new regulatory options to the initial proposed removal of ``interstate waters'' at paragraph (a)(1)(iii) or the initial proposed removal of the word ``intrastate'' from paragraph (a)(5). ... this SNPRM does not supplement the regulatory options for the previously proposed exclusions for waste treatment systems at paragraph (b)(1), prior converted cropland at paragraph (b)(2), certain ditches at paragraph (b)(3), and groundwater at (b)(9) ... this SNPRM also would make no changes to the existing exclusions in paragraphs (b)(4) through (8) other than conforming edits

  Open EPA and Department of the Army / Federal Register (GPO govinfo) (opens in a new tab)

• DefinitionPROPOSED (Nov. 2025 NPRM, as summarized by the agencies): The proposal would (1) delete the 'interstate waters' category (a)(1)(iii); (2) delete 'intrastate' from the (a)(5) lakes-and-ponds category; (3) revise the exclusions for waste treatment systems (b)(1), prior converted cropland (b)(2), and ditches (b)(3); (4) add a groundwater exclusion (b)(9); and (5) add definitions of 'continuous surface connection,' 'ditch,' 'prior converted cropland,' 'relatively permanent,' 'tributary,' and 'waste treatment system.'

  91 FR 57284, 57286 (Sept. 9, 2026) (SNPRM sec. IV.A summarizing 90 FR 52498) [11]
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  In the NPRM, the agencies proposed to revise the following categories of ``waters of the United States'' under 33 CFR 328.3 and 40 CFR 120.2 paragraph (a) by deleting the interstate waters category under paragraph (a)(1)(iii) and deleting ``intrastate'' from the paragraph (a)(5) category for lakes and ponds. ... In addition, the agencies proposed to revise the following exclusions: the (b)(1) waste treatment system exclusion, the (b)(2) prior converted cropland exclusion, and the (b)(3) ditch exclusion. The agencies also proposed adding an exclusion for groundwater at (b)(9).

  Open EPA and Department of the Army / Federal Register (GPO govinfo) (opens in a new tab)

• ExemptionPROPOSED (Nov. 2025 NPRM): Of the eight exclusions, the proposal would modify only three: waste treatment systems (b)(1), prior converted cropland (b)(2), and certain ditches (b)(3). So the artificial lakes/ponds exclusion (b)(5) and the ornamental/swimming pond exclusion (b)(6) would stay as they are. Exclusions would still not apply to (a)(1) traditional navigable waters and the territorial seas.

  Applies when: Would apply only if finalized 90 FR 52498, 52533-34, 52545 (Nov. 20, 2025) [12]
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  In paragraph (b) of the agencies' regulations, EPA and the Army are proposing to modify three of the eight exclusions from the definition of ``waters of the United States:'' the paragraph (b)(1) exclusion for waste treatment systems, the paragraph (b)(2) exclusion for prior converted cropland, and the paragraph (b)(3) exclusion for certain ditches. ... Thus, consistent with longstanding practice, the agencies are proposing to continue the policy that exclusions do not apply to the paragraph (a)(1) traditional navigable waters and the territorial seas.

  Open U.S. EPA / Department of the Army (Federal Register via govinfo.gov) (opens in a new tab)

• DefinitionPROPOSED (Nov. 2025 NPRM text): 'Relatively permanent' would mean 'standing or continuously flowing bodies of surface water that are standing or continuously flowing year-round or at least during the wet season.' Ephemeral waters, with surface water flowing or standing only in direct response to precipitation, would not be jurisdictional. The wet season is illustrated as the period when average monthly precipitation exceeds average monthly evapotranspiration. Surface hydrology would have to be continuous for the entire wet season. The Sept. 2026 supplemental notice offers a stricter 'perennial' alternative (see below).

  Proposed 33 CFR 328.3(c)(8) / 40 CFR 120.2(c)(8), 90 FR 52498, 52517-18, 52545 (Nov. 20, 2025) [12]
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  In this proposal, the agencies define ``relatively permanent'' to mean ``standing or continuously flowing bodies of surface water that are standing or continuously flowing year-round or at least during the wet season.'' Consistent with the Sackett decision, ephemeral waters (i.e., those with surface water flowing or standing only in direct response to precipitation ... are not jurisdictional ... such as when average monthly precipitation exceeds average monthly evapotranspiration. As proposed, surface hydrology would be required to be continuous throughout the entirety of the wet season.

  Open U.S. EPA / Department of the Army (Federal Register via govinfo.gov) (opens in a new tab)

• DefinitionPROPOSED (Nov. 2025 NPRM text): A 'tributary' would be a body of water with relatively permanent flow and a bed and banks that connects to a downstream traditional navigable water or the territorial seas. A water body would not be a tributary if it contributes surface flow downstream through a feature such as a culvert, dam, tunnel, or similar artificial feature (or certain natural features) that does not carry relatively permanent flow. 'Continuous surface connection' would mean having surface water at least during the wet season and abutting (touching) a jurisdictional water.

  Applies when: Would apply nationwide only if finalized Proposed 33 CFR 328.3(c)(3), (c)(10), 90 FR 52545 (Nov. 20, 2025) [12]
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  (3) Continuous surface connection means having surface water at least during the wet season and abutting (i.e., touching) a jurisdictional water. ... (10) Tributary means a body of water with relatively permanent flow, and a bed and banks, that connects to a downstream traditional navigable water or the territorial seas ... A tributary does not include a body of water that contributes surface water flow to a downstream jurisdictional water through a feature such as ... culvert, dam, tunnel, or similar artificial feature ... if such feature does not convey relatively permanent flow.

  Open U.S. EPA / Department of the Army (Federal Register via govinfo.gov) (opens in a new tab)

• DefinitionPROPOSED (Nov. 2025 NPRM): Lakes, ponds and impoundments with standing or continuously flowing water year-round or at least during the wet season would count as having 'relatively permanent flow.' Because they have a bed (bottom) and banks (side slopes), in-line lakes and ponds that meet the proposed tributary definition would be jurisdictional as (a)(3) tributaries.

  Applies when: Would apply only if finalized; relevant to embankment ponds built on a stream 90 FR 52498, 52522 (Nov. 20, 2025) (preamble sec. V.C.4) [12]
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  Lakes, ponds, and impoundments that contain standing or continuous flowing water, year round or at least during the wet season, would be considered to be ``a body of water with relatively permanent flow'' under the proposed rule. Generally, lakes and ponds do have a bottom, or bed, as well as side slopes, or banks. ... the agencies intend that these in-line lakes and ponds that meet the proposed definition of ``tributary'' would be considered jurisdictional under paragraph (a)(3).

  Open U.S. EPA / Department of the Army (Federal Register via govinfo.gov) (opens in a new tab)

• DefinitionPROPOSED (Nov. 2025 NPRM): A lake or pond assessed under (a)(5) that is not relatively permanent, or that is relatively permanent but lacks a continuous surface connection as proposed, would be non-jurisdictional. For a jurisdictional (a)(5) lake or pond, federal jurisdiction would extend laterally to its ordinary high water mark (33 CFR 328.4), consistent with current practice.

  Applies when: Would apply only if finalized 90 FR 52498, 52533 (Nov. 20, 2025) (preamble sec. V.E.3) [12]
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  which would extend to the ordinary high water mark of the paragraph (a)(5) lake or pond, consistent with current practice and the Corps' regulations at 33 CFR 328.4. ... Lakes and ponds assessed under paragraph (a)(5) that do not meet the proposed definition of ``relatively permanent'' would be non-jurisdictional. Similarly, relatively permanent lakes or ponds assessed under paragraph (a)(5) that do not have a ``continuous surface connection'' as defined in the proposed rule would also be non-jurisdictional.

  Open U.S. EPA / Department of the Army (Federal Register via govinfo.gov) (opens in a new tab)

• ExemptionPROPOSED (Nov. 2025 NPRM text): The ditch exclusion would read 'Ditches (including roadside ditches) constructed or excavated entirely in dry land.' 'Ditch' would mean 'a constructed or excavated channel used to convey water.' Compared with the current exclusion (33 CFR 328.3(b)(3)), the proposed text does not include the 'draining only dry land' and 'do not carry a relatively permanent flow of water' conditions.

  Applies when: Would apply only if finalized; relevant to pond inlet/outlet and drainage ditches Proposed 33 CFR 328.3(b)(3), (c)(4), 90 FR 52545; preamble 90 FR 52538-40 (Nov. 20, 2025) [12]
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  (3) Ditches (including roadside ditches) constructed or excavated entirely in dry land; ... (4) Ditch means a constructed or excavated channel used to convey water.

  Open U.S. EPA / Department of the Army (Federal Register via govinfo.gov) (opens in a new tab)

• DefinitionPROPOSED (Sept. 2026 SNPRM option, proposed regulatory text): 'Relatively permanent' would mean perennial bodies of water, and 'perennial' would mean having standing or continuously flowing water every day of the year during ordinary conditions. A water keeps relatively permanent status if it dries up because of anomalous events such as drought or a dry spell. It also keeps that status if it dries up for no more than a single period of up to 30 consecutive days in any given year because of non-anomalous events such as low tide or a regularly occurring dry spell.

  Applies when: Would apply only if finalized Proposed 33 CFR 328.3(c)(6), (c)(7) and 40 CFR 120.2(c)(6), (c)(7), 91 FR 57301 (Sept. 9, 2026) [11]
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  Perennial means having standing or continuously flowing water every day of the year during ordinary conditions. (7) Relatively permanent means perennial bodies of water. A body of water does not lose its relatively permanent status if it dries up as a result of anomalous events such as drought or dry spell. A body of water also does not lose its relatively permanent status if it dries up for no more than a single period of up to 30 consecutive days in any given year as a result of non-anomalous events resulting in a temporary interruption such as low tide or a regularly occurring dry spell.

  Open EPA and Department of the Army / Federal Register (GPO govinfo) (opens in a new tab)

• DefinitionPROPOSED (Sept. 2026 SNPRM option, the agencies' worked examples): Only a single non-anomalous interruption per year is allowed. If flow stops for two periods in a year, even periods of only 10 consecutive days each, the water would not be jurisdictional when the interruptions are non-anomalous. A water that dries for 30 consecutive days during a dry spell every June would meet the definition. A water that ordinarily lacks standing or flowing water from June through August (about 90 days) every year would not be relatively permanent.

  Applies when: Would apply only if finalized; under this option, a creek that ordinarily goes dry for more than a single period of 30 consecutive days a year (absent anomalous drought) would not be relatively permanent 91 FR 57284, 57288, 57291 (Sept. 9, 2026) (SNPRM secs. V.B.2, V.B.2.a) [11]
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  if flow is interrupted for two periods in any given year, and each period consists of 10 consecutive days of no flow, the water body would not be jurisdictional when these interruptions are non-anomalous. ... if a water temporarily ceases to have standing or continuously flowing water for 30 consecutive days during a dry spell every June, it would meet the definition of ``relatively permanent'' ... a water that lacks standing or continuously flowing water from June through August (approximately 90 days) every year, i.e., under ordinary conditions, would not be relatively permanent.

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• DefinitionPROPOSED (Sept. 2026 SNPRM, drought): The agencies are considering counting only U.S. Drought Monitor 'extreme' (D3) and 'exceptional' (D4) droughts as anomalous drought that can interrupt perennial flow without loss of jurisdiction, and only for up to five continuous years. After five years the drought would be treated as the new normal and the water would no longer be jurisdictional under ordinary conditions. The five years was chosen to match the five-year life of an approved jurisdictional determination under RGL 05-02.

  Applies when: Would apply only if finalized 91 FR 57284, 57290 (Sept. 9, 2026) (SNPRM sec. V.B.2) [11]
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  The agencies are considering implementing drought under this supplemental option such that only extreme (D3) and exceptional (D4) droughts would qualify as anomalous drought conditions that can temporarily interrupt perennial flow, and can extend continuously across no more than a five-year timeframe, after which the drought condition would be nullified for purposes of identifying ``relatively permanent'' waters, and that water would no longer be jurisdictional under its ordinary conditions as the interruption has ceased to be `anomalous.' A five-year timeframe is consistent with the five-year expiration date of an approved jurisdictional determination under existing Army Corps of Engineers (Corps) guidance.

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• DefinitionPROPOSED (Sept. 2026 SNPRM option, proposed regulatory text): 'Continuous surface connection' would mean perennial surface water in a wetland that is continuously connected with the surface water in the jurisdictional water, so that it is difficult to tell where the jurisdictional water ends and the wetland begins. Anomalous events such as drought or a dry spell may cause temporary interruptions in the connection. So may non-anomalous events, if the interruption lasts no more than a single period of up to 30 consecutive days in any given year.

  Applies when: Would apply only if finalized Proposed 33 CFR 328.3(c)(3) / 40 CFR 120.2(c)(3), 91 FR 57301; preamble 91 FR 57294-95 (Sept. 9, 2026) [11]
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  (3) Continuous surface connection means perennial surface water in a wetland that is continuously connected with the surface water in the jurisdictional water such that it is difficult to determine where the jurisdictional water ends and the wetland begins. Temporary interruptions in the surface water connection may occur as the result of anomalous events such as drought or dry spell. A temporary interruption in the surface water connection lasting no more than a single period of up to 30 consecutive days in any given year may also occur as a result of non-anomalous events

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