EPA Seeks More Comments on Which Waters Get Clean Water Act Protection
The Environmental Protection Agency and the Department of the Army have reopened public comment on how the federal government should define the wetlands, streams and other waters covered by the Clean Water Act.
The agencies published a supplemental notice of proposed rulemaking in the Federal Register on September 9, 2026. Public comments are due October 9, 2026. The notice is part of an ongoing rulemaking process—not a final rule—and it does not immediately change federal protections or permitting requirements.
What changed on September 9
The supplemental notice adds regulatory options for public review as EPA and the Army Corps continue working toward a final definition of “waters of the United States,” commonly called WOTUS.
The options address how regulators would identify “relatively permanent” waters and waters with a “continuous surface connection” to those relatively permanent waters. The agencies are also seeking comment on adding a definition of “perennial” waters, a term generally used for waters that flow continuously or persist throughout the year.
The September notice is being considered alongside the agencies’ November 20, 2025, proposed rule. It supplements selected parts of that earlier proposal rather than replacing it or resolving the remaining legal and policy questions.
Why the Supreme Court ruling matters
The rulemaking follows the Supreme Court’s May 25, 2023, decision in Sackett v. EPA. The ruling limited the scope of federal Clean Water Act jurisdiction over wetlands, emphasizing relatively permanent waters and a continuous surface connection in the circumstances addressed by the decision. It did not eliminate all federal protection for wetlands.
EPA and the Army say the additional comment process could help produce a durable definition and provide greater regulatory certainty. Those are agency positions, not findings that the proposed options have already been adopted.
What could be affected
If a final rule narrows the waters covered by federal jurisdiction, some projects could face different federal permitting or enforcement requirements. Potentially affected groups include landowners, farmers, ranchers, developers, energy producers, businesses, states and tribes.
Wetlands and streams that hold or carry water only during part of the year could be especially important under the proposed definitions. But the notice does not say that all wetlands, ephemeral streams or seasonal streams would lose federal protection. The outcome would depend on the definitions selected in a final rule and how federal regulators implement them.
Environmental groups have warned that narrowing federal jurisdiction could leave more waters dependent on state, tribal or local safeguards. Those are predictions about possible future effects, not changes that have taken effect.
What readers should do now
Nothing changes immediately because the September notice remains a proposal. People planning construction, farming, energy or other land-disturbance projects should not assume that current federal permitting obligations have changed.
Comments may be submitted through Regulations.gov using docket ID EPA-HQ-OW-2025-0322, along with other methods listed in the Federal Register notice. The deadline is October 9, 2026. Comments filed in the docket may become public, so commenters should avoid including confidential or proprietary information.
The agencies are still reviewing the November 2025 proposal, approximately 220,000 earlier comments and responses to the new supplemental notice. A final rule has not been issued, and the eventual effect on wetlands, seasonal streams and development projects remains unresolved.
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