EPA Proposed Narrower Waters of the United States Rules
Landowners and industrial operators face updated definitions of jurisdictional waters as the public comment period nears a close.
Updated on Oct. 6, 2026 in Utilities
Live Poll
Should federal environmental protections for wetlands be limited to only those with year-round water connections?
On September 9, 2026, the EPA and Army Corps of Engineers opened a public comment period for a supplemental proposal to define "waters of the United States" (WOTUS). The proposal clarifies three specific definitions previously introduced in November 2025 to better align regulatory reach with judicial precedent.
Why it matters
These changes reflect an effort to align agency enforcement with the 2023 Supreme Court ruling in Sackett v. EPA, potentially narrowing federal jurisdiction. For operators, the final definitions dictate which wetlands or water bodies require federal permits for development or construction activities.
The proposal allows a maximum of 30 consecutive days of seasonal dryness for a water body to remain classified as perennial. This represents a recalibration of definitions used in the November 2025 proposal and the 2023 post-Sackett updates.
The players
Environmental Protection Agency
The federal agency tasked with protecting human health and the environment through the implementation of national pollution control laws.
U.S. Army Corps of Engineers
The military agency responsible for investigating, developing, and maintaining the nation's water and related environmental resources.
The details
The agencies are refining the criteria for identifying relatively permanent water and continuous surface connections, which determine whether wetlands fall under federal protection. By defining perennial bodies to allow for a 30-day annual dry period, the proposal clarifies a technical threshold that impacts property permitting. Operators must now evaluate if their sites meet these criteria, as the proposed framework could result in the narrowest definition of WOTUS since the Clean Water Act's 1972 inception.
Timeline
1972: The Clean Water Act was signed into law.
2023: The Supreme Court issued the Sackett v. EPA decision.
November 2025: The EPA issued an initial WOTUS definition proposal.
September 9, 2026: The federal public comment period opened.
October 9, 2026: The public comment period closes.
Market Landscape
This supplemental proposal follows the 2023 Supreme Court decision in Sackett v. EPA, which significantly restricted the scope of federal oversight on private land. The move attempts to resolve technical ambiguities that have persisted since the 2023 ruling forced a national re-evaluation of jurisdictional water boundaries.
Operators currently engaged in site development should review how these definitions alter the status of their land before the October 9, 2026, comment deadline. Compliance teams should consult with counsel to understand how these proposed thresholds impact long-term permitting strategies.
The takeaway
The proposed definitions signal a shift toward greater regulatory clarity for land-use permitting following the Sackett decision. Monitor the Federal Register for the final rule publication to determine if existing property site-assessments require updating.
Further reading
For broader updates on environmental permitting, explore the Utilities section.
Live Poll
Should federal environmental protections for wetlands be limited to only those with year-round water connections?
