WOTUS After Sackett: Why Virginia Projects Still Need Wetland Mitigation

Few questions matter more to a site plan than whether a wet area on the property counts as "waters of the United States." If it does, filling it takes a federal Clean Water Act permit and, usually, compensatory mitigation. Since 2023 that line has been moving. Here is where it stands, and why the answer for Virginia projects isn't as simple as the federal headlines suggest.

What Sackett changed

In Sackett v. EPA (2023), the Supreme Court narrowed federal jurisdiction over wetlands. Wetlands are covered when they have a continuous surface connection to a relatively permanent body of water that is itself covered, making them hard to tell apart from that water. Many isolated or seasonally connected wetlands that were regulated before fell outside federal reach.

Where the rulemaking stands

The agencies have been working toward a definition that fully implements the decision:

1. In November 2025, EPA and the Army released a proposed rule to revise the definition. The comment period closed January 5, 2026.
2. The proposal drew more than 220,000 comments and three public meetings, according to EPA.
3. On September 4, 2026, the agencies issued a supplemental notice of proposed rulemaking to gather input on additional regulatory language, to be weighed alongside the 2025 proposal before a final rule.

Until a final rule takes effect and survives the litigation that will follow, project teams are working with a definition in transition.

Why Virginia is different

Federal jurisdiction is only half the question in Virginia. The state regulates impacts to state waters, including wetlands, through DEQ's Virginia Water Protection permit program, and state waters reach further than the federal definition. A wetland that falls outside federal jurisdiction after Sackett can still need a state permit, and that permit can still require compensatory mitigation. DEQ's compensatory mitigation page lists buying credits from a DEQ-approved mitigation bank as an accepted way to provide it.

In other words, a narrower federal rule can change which agency you deal with and how long the review takes. It doesn't necessarily mean you can fill the wetland without offsetting it.

What to do on a site with questionable waters

1. Get a delineation early, before the concept plan locks in building pads and roads.
2. If federal status is unclear, ask the Corps' Norfolk District for a jurisdictional determination, and expect the answer to depend on the rule in effect at the time.
3. Talk to DEQ about state waters at the same time, so a federal answer doesn't lead you to skip a state permit.
4. Price mitigation into the pro forma for any wetland or stream you may need to fill, under either program.
5. Watch for the final rule. We'll update this post when it's published.

How we can help

Potomac Mitigation Bank sponsors stream and wetland banks in Northern Virginia, with credits that can satisfy both federal and state mitigation requirements within our service areas. Send us your site location and the impacts you're evaluating, and we'll tell you what's available. Request pricing or call (540) 251-1321.