Anchor
EPA seeks more comments on rule narrowing Clean Water Act wetlands protections
Rule ChangesSupplemental proposal would define 'relatively permanent' waters as perennial streams and rivers
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Overview
Updated YesterdayThe Environmental Protection Agency (EPA) opened a second public comment period Friday on a rule that would sharply narrow which wetlands the Clean Water Act protects. The supplemental notice comes nearly a year after the agency's first proposal, which drew more than 220,000 comments.
The new approach defines "relatively permanent" waters as "perennial bodies of water" — streams, rivers, and lakes that flow year-round. Waterways that stay dry for more than 30 consecutive days in a normal year would fall outside federal jurisdiction, leaving oversight to state, tribal, and local governments.
Why it matters
The final rule decides which wetlands require federal permits, a question affecting farmers, developers, and property owners nationwide.
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Key Indicators
220,000+
Public comments on the 2025 proposed rule
The 45-day comment period closed January 5, 2026.
30 days
New supplemental comment period
Opens once the supplemental notice publishes in the Federal Register.
2
Supreme Court rulings on WOTUS since 2006
Rapanos v. United States (2006) and Sackett v. EPA (2023).
4
Presidential administrations that have redefined WOTUS
Obama (2015), Trump (2020), Biden (2023 proposal), and the second Trump administration (2025-current).
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EPA seeks more comments on rule narrowing Clean Water Act wetlands protections
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People Involved
Organizations Involved
U.S. Environmental Protection Agency (EPA)
Federal Agency
Lead agency in the WOTUS rulemaking
The EPA administers the Clean Water Act and has driven the WOTUS definition through four presidential administrations.
U.S. Army Corps of Engineers
Federal Agency
Co-issuer of the supplemental WOTUS notice
The Corps jointly administers Clean Water Act wetlands permitting with the EPA.
Timeline
June 2006 September 2026
8 events
Latest: Yesterday
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-
EPA issues supplemental WOTUS notice
Latest Rule ChangeAgencies seek comment on defining 'relatively permanent' as 'perennial' waters and on a 30-consecutive-day dryness threshold. Comment period opens at 30 days after Federal Register publication.
-
Comment period closes with 220,000+ submissions
Public EngagementEPA held three public meetings during the comment window. Stakeholders ranged from environmental groups to farm and industry associations.
-
EPA proposes new WOTUS rule
Rule ChangeFirst Trump-era proposal implementing Sackett. Opened a 45-day comment period.
-
Supreme Court decides Sackett v. EPA
LegalUnanimous ruling held wetlands need 'continuous surface connection' to navigable waters for federal protections to apply.
-
Arizona court vacates Navigable Waters Protection Rule
LegalFederal judge found the rule 'fundamentally, structurally flawed,' leaving no national WOTUS definition in place.
-
Trump EPA finalizes Navigable Waters Protection Rule
Rule ChangeFirst Trump-era attempt to narrow WOTUS, excluding ephemeral streams and many wetlands from federal jurisdiction.
-
Obama EPA finalizes Clean Water Rule
Rule ChangeExpanded WOTUS using the 'significant nexus' test. Multiple courts enjoined it, and it never took effect nationwide.
-
Supreme Court splits in Rapanos v. United States
Legal4-1-4 ruling left competing tests for wetlands jurisdiction. Justice Scalia's plurality introduced the 'relatively permanent' standard.
Historical Context
3 moments from history that rhyme with this story — and how they unfolded.
June 2006
Rapanos v. United States (2006)
Michigan developer John Rapanos faced fines for filling wetlands on commercial property. The Supreme Court split 4-1-4, with Justice Scalia's plurality opinion introducing the 'relatively permanent' standard for federal jurisdiction.
Then
No single test emerged from the decision; lower courts applied competing standards for two decades.
Now
The 'relatively permanent' language from Scalia's opinion became the foundation for the Sackett majority's reasoning in 2023.
Why this matters now
The phrase EPA is now trying to define has been legally ambiguous since 2006. This rulemaking is the first serious attempt to operationalize it.
January 2020 - August 2021
Navigable Waters Protection Rule (2020)
Trump's first EPA finalized the Navigable Waters Protection Rule, narrowing WOTUS by excluding ephemeral streams and many wetlands. It was the first major narrowing of federal water jurisdiction in decades.
Then
A federal judge in Arizona vacated the rule in August 2021, calling it 'fundamentally, structurally flawed.'
Now
The vacatur left no national WOTUS definition in place, creating a regulatory vacuum that persisted through the Sackett decision.
Why this matters now
This is the closest precedent for the current attempt to narrow WOTUS — and a warning that courts may reject definitions they see as too restrictive.
May 2023
Sackett v. EPA (2023)
Michael and Chantell Sackett wanted to build a home on their Idaho lot near Priest Lake. The Supreme Court ruled 9-0 that their property, which EPA deemed wetlands, was not covered by the Clean Water Act because it lacked a 'continuous surface connection' to navigable waters.
Then
The decision removed federal protections for millions of acres of wetlands and gave EPA a new legal framework to apply.
Now
It established the 'relatively permanent' and 'continuous surface connection' tests that the current rulemaking is now trying to translate into regulatory language.
Why this matters now
The supplemental proposal is an attempt to convert the court's tests into measurable rules — specifically, to define 'relatively permanent' as 'perennial.'