November 2025

Over the past decade, the definition of “waters of the United States” (WOTUS) has shifted repeatedly, creating uncertainty for permitting and project planning. Building on the Supreme Court’s Sackett v. EPA decision, the EPA and the U.S. Army Corps of Engineers (together, the agencies) announced a proposal this week to further refine which water features qualify as WOTUS by narrowing key definitions and codifying — and expanding — exclusions. The proposal would apply across all Clean Water Act (CWA) programs that rely on WOTUS, including permitting under Sections 404 and 402, water quality certifications under Section 401, and Total Maximum Daily Loads (TMDLs) for impaired waters under Section 303. The proposal is directionally deregulatory, meaning fewer waters are likely to be considered federally jurisdictional and therefore regulated. The new definition was published in the Federal Register on Thursday, marking the start of a 45-day public comment period through January 5, 2026. The public comment page can be accessed here.

This article was republished in the December 2025 edition of E-Outlook, the Environmental & Natural Resources Section of the Oregon State Bar’s newsletter.

This week, the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively, the Services) proposed revisions to the Endangered Species Act (ESA) regulations that, if finalized, will generally restore the regulations adopted in 2019, during President Trump’s first term. The proposed regulations were published in the Federal Register on November 21, 2025, starting a 30-day public comment period that ends on December 21, 2025.

As the longest federal government shutdown on record continued earlier this week, EPA stayed busy putting the finishing touches on one of its PFAS-related priorities — enabling EPA to “smartly collect” information about PFAS substances under the Toxic Substances Control Act (TSCA) as required by Congress in the National Defense Authorization Act for Fiscal Year 2020. Early signs of EPA’s desire to simplify the TSCA PFAS reporting rule, which was finalized by the Biden EPA in 2023, were evident in the agency’s April 2025 announcement of “Major Actions to Combat PFAS Contamination” discussed here, where EPA committed to implement the required information collection “without overburdening small businesses and article importers.”