What counts as “navigable waters” today?

Post-Sackett, WOTUS includes traditional navigable waters, territorial seas, certain interstate waters, impoundments, tributaries that are relatively permanent, and adjacent wetlands that directly abut those waters through a continuous surface connection. Non-jurisdictional ditches do not create adjacency.

Recent changes

• Supreme Court in Sackett (May 2023): The CWA covers only waters that are relatively permanent and wetlands with a continuous surface connection to those waters. The Court rejected the “significant nexus” test.
• Conforming amendments (September 2023): EPA and the USACE removed the significant nexus standard, revised adjacency, and clarified that interstate wetlands are not automatically WOTUS.
• Field guidance (March 2025): EPA and USACE directed that non-jurisdictional ditches, swales, pipes, and culverts do not create a continuous surface connection. Wetlands must directly abut the water.
• Proposed rule (November 2025): Adds definitions for “relatively permanent,” “tributary,” and “continuous surface connection.” If finalized, federal coverage will narrow further.

Where each rule applies

Implementation is split:

• 2023 amended rule: In effect in 24 states, DC, and territories.
• Pre-2015 regime + Sackett: Applies in 26 states, including Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, and Wyoming.

Kentucky now follows the 2023 rule except for certain litigants. Always check EPA’s “Current Implementation” page to check state status before filing permits.

Why it matters to industry and commerce

• Permitting: WOTUS defines whether projects need Section 404 (dredge/fill) and Section 402 (NPDES) permits. Narrower federal scope can reduce federal permitting, but state and tribal programs may still apply.
• Design: Wetlands separated by berms or uplands and connected only by ditches or culverts likely do not qualify as WOTUS. Early jurisdictional determinations (JDs) and hydrologic documentation are critical.
• Risk: Multi-state portfolios face uneven rules due to individual states having their own regulatory framework. The 2025 proposal could further limit federal reach, shifting responsibility to states. Multi-state industry and commerce should prepare for state variability and litigation-driven changes.

The legal and regulatory arc: why definitions keep changing

• Statute: The CWA regulates “navigable waters,” defined as “waters of the United States,” but does not define WOTUS.
• Court history: Court decisions have repeatedly reshaped and narrowed the definition of WOTUS. U.S. v. Riverside Bayview (1985) upheld adjacent wetlands; the scope narrowed when SWANCC v. USACE (2001) limited isolated waters; Rapanos v. U.S. (2006) deepened uncertainty by introducing two competing tests, “relatively permanent” vs. “significant nexus,” leaving regulators and courts with ambiguity.
• Rulemaking swings:

1. 2015 Clean Water Rule broadened coverage.
2. 2020 Navigable Waters Protection Rule narrowed it; later vacated.
3. 2023 WOTUS Rule was reshaped by Sackett and amended in August 2023.

• Current alignment: The 2023 amendments and 2025 proposal aim to match the Court’s standards.

Pending actions to watch in 2026

• Final rule: The 2025 proposal’s comment period closed Jan. 5, 2026. A final rule could standardize terms and narrow jurisdiction further.
• Litigation: Courts may lift or expand injunctions, changing which states apply which regime.
• Funding: FY2025 operations rely on continuing resolutions; WOTUS changes will come through rulemaking, not budget riders.

Practical steps for EHS and project teams

• Confirm your state’s regime before scoping.
• Request or update JDs early; document permanence and direct abutment.
• Track the 2025 proposal and submit comments where unclear.

Key to Remember: WOTUS and “navigable waters” definitions are narrowing, reducing some federal burdens but increasing state variability. For industrial and commercial projects, early jurisdictional work and state-specific permitting plans are essential to protect schedules and budgets.

When does a job transfer or restriction become recordable?

OSHA’s rule in 29 CFR 1904.7 states that an injury or illness is recordable if it results in days away, restricted work, or a job transfer. “Restricted work” means the employee cannot perform one or more routine job functions or cannot work a full shift because of the injury.

What about restrictions that aren’t injury-based?

This is where confusion often creeps in. OSHA clarified in a 2016 letter of interpretation that restrictions imposed for reasons unrelated to physical ability, such as protecting product quality or operational efficiency, are not recordable. For example, Brandon cuts his finger but can still do his job. The company keeps him out of a sterile area to avoid contamination, not because he’s physically limited. OSHA says that’s not a recordable restriction because it’s about quality control, not capability.

Additionally, OSHA clarifies an important point about productivity. A slowdown in speed or efficiency does not make a case recordable as long as the employee can still perform all of their normal job functions. Recordability is based on physical limitations, not business-driven decisions or reduced output.

For example, if Ed injures his arm and works more slowly but still completes all his usual tasks, that’s not restricted work. Productivity loss alone doesn’t trigger recordability, the key factor is whether the injury prevents the employee from performing routine job duties.

How does counting days away, restrictions, or transfer work?

Once you determine a case is recordable, OSHA requires you to start counting the day after the injury or illness occurs and continue until the employee resumes all routine job functions without restriction. This is spelled out in 29 CFR 1904.7(b)(3)(vii). The count includes calendar days, not just scheduled workdays, and weekends and holidays are part of the total.

For example, if Cindy spends three days doing inventory instead of her usual production work, those three days go in the OSHA 300 log. If her restriction spans a weekend, those days count too, even if she wasn’t scheduled to work.

OSHA also sets a cap of 180 calendar days for combined totals of days away from work, restricted work, and job transfer. If the injury or illness continues beyond that point, you stop counting once the overall total reaches 180 days, even if the employee remains under limitations.

What if an injured employee leaves the company?

This scenario often creates uncertainty for supervisors. If an injured employee leaves, what happens to your OSHA log? OSHA addresses this in 1904.7(b)(3)(viii). The rule is straightforward but requires a bit of determination from the employer:

• If the departure is unrelated to the injury, you stop counting restricted days and days away from work on the employee’s last day. For example, Jeff accepts a promotion at another company. His wrist injury had him on light duty, but his decision to leave was for career advancement. You record the days up to his last shift and stop there.
• If the departure is related to the injury, you must estimate the total number of days the employee would have been restricted or away and record that estimate. OSHA expects employers to make a reasonable projection based on medical advice and typical recovery times. For instance, Gina resigns because her back injury prevents her from performing essential job functions. Her doctor anticipated six weeks of restrictions. Even though she left after two weeks, you record the estimated six weeks.

OSHA emphasizes that these estimates should be made in good faith. You’re not expected to predict the future perfectly, but you should use available information, such as physician recommendations or similar cases, to make a reasonable determination.

Key to remember: OSHA recordkeeping can seem complex, and many times create more questions than answers, but the agency offers clarity through its letters of interpretation. When in doubt, rely on these official resources, they’re designed to help employers make accurate, compliant decisions.