EPA Army Redux: Still Redefining Wetlands Post-Supreme Court Waters Fight
Published Date: 9/9/2026
Proposed Rule
Summary
The purpose of this supplemental notice of proposed rulemaking is for the U.S. Environmental Protection Agency (EPA) and the Department of the Army ("the agencies") to supplement and seek additional comment on certain aspects of an earlier proposal, published on November 20, 2025, to revise the regulations defining the scope of waters federally covered under the Clean Water Act in light of the U.S. Supreme Court's 2023 decision in Sackett v. Environmental Protection Agency. As stated in the agencies' November 20, 2025 Notice of Proposed Rulemaking (NPRM), the agencies intend for this rulemaking to provide greater regulatory certainty and increase Clean Water Act program predictability and consistency by clarifying the definition of "waters of the United States." After consideration of the public comments received on the NPRM, the agencies are issuing this notice to supplement the NPRM with additional regulatory options on certain aspects of the proposed rule.
Analyzed Economic Effects
4 provisions identified: 3 benefits, 0 costs, 1 mixed.
“Relatively Permanent” Limited to Perennial
The agencies propose to define “relatively permanent” to mean only perennial bodies of water — i.e., waters with standing or continuously flowing water every day of the year during ordinary conditions. The proposal would state a perennial water keeps its status even if it temporarily dries up for a single period of up to 30 consecutive days in any given year for non‑anomalous events (for example, low tide or a regularly occurring dry spell).
Drought Exception: Extreme Droughts Up To Five Years
Under a supplemental option the agencies would treat certain anomalous events like extreme or exceptional drought (U.S. Drought Monitor levels D3 and D4) as allowing a normally perennial water to remain jurisdictional even if it temporarily ceases year‑round flow. The agencies propose that such anomalous drought conditions could extend continuously across no more than a five‑year timeframe for purposes of maintaining jurisdictional status.
Removing 'Interstate' and 'Intrastate' Wording
The agencies propose deleting the ‘interstate waters’ category at paragraph (a)(1)(iii) and removing the word ‘intrastate’ from the lakes and ponds category at paragraph (a)(5) in the Clean Water Act regulatory definitions. These textual deletions were part of the November 20, 2025 NPRM and are carried forward in this supplemental notice.
Proposed Exclusions: Groundwater, Cropland, Ditches, Waste Systems
The initial NPRM (Nov. 20, 2025) proposed revising exclusions for waste treatment systems (paragraph (b)(1)), prior converted cropland (paragraph (b)(2)), and certain ditches (paragraph (b)(3)), and proposed adding an exclusion for groundwater at paragraph (b)(9). This SNPRM states it does not supplement those exclusion proposals but continues to consider them from the earlier NPRM.
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Key Dates
Department and Agencies
Related Federal Register Documents
2025-20402, Updated Definition of “Waters of the United States”
The EPA and Army Corps are updating the rules that decide which waters are protected under the Clean Water Act, following a 2023 Supreme Court decision. This change helps everyone know exactly which waters are covered, making it easier to protect lakes, rivers, and wetlands while respecting state and tribal rights. People and businesses affected should share their thoughts by January 5, 2026, as this update could impact water projects and environmental protections.
2025-04649, WOTUS Notice: The Final Response to SCOTUS; Establishment of a Public Docket; Request for Recommendations
The EPA and Army are teaming up to rethink what counts as 'waters of the United States' after a big Supreme Court decision. They want to hear from states, tribes, farmers, businesses, and everyday folks before making new rules. This means you can join in by sharing your ideas soon, helping shape how water protections work—and maybe saving money by avoiding confusion later!
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