Federal Wetland Regulation Updates

By: Matthew Vollbrecht, PWS, Wetland Manager/Environmental Lead

It has been a busy late summer/fall with guidance and news from the U.S. Army Corps of Engineers (USACE).  Please see the three items of interest below for recent developments on the federal wetland regulations landscape. 

Summary

1. Less water features will be under federal jurisdiction by the end of the year due to a new Clean Water Act Rule.
2. Instant correspondence is available through a USACE Module for projects where “No Permit is Required”.
3. Thermal energy projects will receive priority over wind and solar projects for USACE approvals.   

Details

Item 1 - EPA proposes new Clean Water Act Rule  

EPA plans to dramatically reduce wetland protection

It is being reported that the Trump administration will soon propose a new Clean Water Act rule that could eliminate federal protections for many wetlands across the U.S.  Under the proposed rule, the federal government will regulate wetlands only if they meet a two-part test: They would need to contain surface water throughout the “wet season,” and they would need to be abutting and touching a river, stream or other waterbody that also flows throughout the wet season.  The White House Office of Management and Budget is now reviewing the proposal rule, titled, “Clarifying the Legal Extent of Agency Regulation of Waters of the United States (or The CLEAR WOTUS).  The agencies are expected to take final action on the rule by the end of the year,” the EPA spokesperson said. 

The wet season would vary depending on the location of the water body.  Overall, the language likely will result in the federal government having less jurisdiction over wetlands and waters than existed under prior rules.  The rule would also exempt more industrial waste treatment systems and ditches from the Clean Water Act. Previously, ditches constructed or excavated entirely in dry land, that drained only into dry land, and that did not carry water were not considered “waters of the U.S”.  Under the new proposed rule, a ditch would only need to be constructed entirely within dry land to qualify as exempt.  

This updated rule will likely result in less water features being under federal jurisdiction.  In theory this will ease the permitting burden , especially in states that have no state or local regulations.  However, this definition of surface water during the wet season is a little vague and it may lead to inconsistent application between USACE districts unless clearer guidance is included when the rule is published. 

Item 2 – USACE introduces new Regulatory Request System Module 

USACE introduces new Regulatory Request System module

The U.S. Army Corps of Engineers recently announced the launch of a new “No Permit Required” module on its Regulatory Request System (RRS), their online submission site.  This new module allows the public to answer a series of questions about their proposed activity to determine if authorization from USACE is required. If the information provided through the RRS results in a response that no permit is required for the proposed activity, users will immediately be provided correspondence. If the information provided results in a response that a permit is required, the user is provided the option to apply for a permit or preapplication meeting through the appropriate RRS application module. 

Westwood’s wetland staff are currently testing this update to determine required information and the useability of the output documentation for our clients’ projects.  We will be providing more feedback on this new process as we complete testing. 

Item 3 – Army Corps of Engineers begins implementing policy to increase America’s energy generation efficiency 

Army Corps of Engineers begins implementing policy to increase America’s energy generation efficiency 

In a Memo issued September 22, 2025, Assistant Secretary of the Army for Civil Works Adam Telle directed the U.S. Army Corps of Engineers to “weigh whether energy projects that might impact America’s navigable waters would actually deliver significant energy, relative to impacts, for the American people before it allows such activity”.  According to the press release and memo, the guidance directs the U.S. Army Corps of Engineers to prioritize processing Clean Water Act and Rivers and Harbors Act permit applications related to projects that would generate the most annual energy per acre over projects with low generation per acre. According to the guidance, “considerations should include a project’s annual potential energy generation per acre, whether it would displace more reliable energy sources, and whether it would denigrate the aesthetics of America’s natural landscape”. 

According to guidance in the memo, energy generation types vary in how much land they require to generate the same amount of power and therefore vary in how much they impact the environment. According to the U.S. Department of Energy, National Renewable Energy Laboratory (NREL), and the U.S. Energy Information Administration (EIA), to generate 2,000 megawatts, an onshore wind farm requires 170,000 acres and a solar farm requires 12,000 acres. The same data also indicates that advanced nuclear reactors can develop the same 2,000 megawatts using only 60 acres.