EPA seeks more comments on rule narrowing Clean Water Act wetlands protections

Overview

Updated 7 days ago

The 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. The agencies also floated an alternative that would strip federal protection from most "adjacent" wetlands, keeping only those indistinguishable from a navigable water.

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.

Supreme Court rulings on WOTUS since 2006

Rapanos v. United States (2006) and Sackett v. EPA (2023).

Presidential administrations that have redefined WOTUS

Obama (2015), Trump (2020), Biden (2023 proposal), and the second Trump administration (2025-current).

Voices

Curated perspectives — historical figures and your fellow readers.

Ever wondered what historical figures would say about today's headlines?

People Involved

Lee Zeldin

EPA Administrator

Leading the current WOTUS rulemaking

Organizations Involved

U.S. Environmental Protection Agency (EPA)

Federal Regulatory 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: September 4th, 2026 · 1 week ago

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September 2026
EPA issues supplemental WOTUS notice
Latest Rule Change

Agencies 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.
September 4th, 2026
January 2026
Comment period closes with 220,000+ submissions
Public Engagement

EPA held three public meetings during the comment window. Stakeholders ranged from environmental groups to farm and industry associations.
January 5th, 2026
November 2025
EPA proposes new WOTUS rule
Rule Change

First Trump-era proposal implementing Sackett. Opened a 45-day comment period.
November 20th, 2025
May 2023
Supreme Court decides Sackett v. EPA
Legal

Unanimous ruling held wetlands need 'continuous surface connection' to navigable waters for federal protections to apply.
May 25th, 2023
August 2021
Arizona court vacates Navigable Waters Protection Rule
Legal

Federal judge found the rule 'fundamentally, structurally flawed,' leaving no national WOTUS definition in place.
August 30th, 2021
January 2020
Trump EPA finalizes Navigable Waters Protection Rule
Rule Change

First Trump-era attempt to narrow WOTUS, excluding ephemeral streams and many wetlands from federal jurisdiction.
January 23rd, 2020
June 2015
Obama EPA finalizes Clean Water Rule
Rule Change

Expanded WOTUS using the 'significant nexus' test. Multiple courts enjoined it, and it never took effect nationwide.
June 29th, 2015
June 2006
Supreme Court splits in Rapanos v. United States
Legal

4-1-4 ruling left competing tests for wetlands jurisdiction. Justice Scalia's plurality introduced the 'relatively permanent' standard.
June 19th, 2006

Scenarios

EPA finalizes narrower WOTUS rule in 2027

Possible Resolves by Q3 2027

Discussed by: EPA Administrator Lee Zeldin; industry groups and agricultural organizations that favor fewer federal permitting requirements

EPA reviews supplemental comments and publishes a final rule defining 'relatively permanent' waters as perennial streams. The rule takes effect and narrows federal wetlands jurisdiction, with legal challenges filed but not yet blocking implementation.

Courts block the rule before it takes full effect

Likely Resolves by Q1 2028

Discussed by: National Wildlife Federation; natural resources attorneys cited by Bloomberg Law

Environmental groups and states file suit immediately after the final rule publishes, arguing it excludes waters Congress intended the Clean Water Act to protect. A federal court issues a preliminary injunction or vacates the rule, echoing the August 2021 Arizona ruling that struck down the 2020 Navigable Waters Protection Rule.

Rulemaking stalls; final rule slips into 2028

Possible Resolves by End of 2027

Discussed by: Reuters report calls the supplemental notice 'highly unusual'; AP notes the rule has been fought over in courts for decades

The supplemental comment period produces new objections, or agency staff find the 30-consecutive-day threshold unworkable in practice. EPA issues another extension or reopening, pushing the final rule past the end of 2027.

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.'