The EPA and Army Corps of Engineers are considering a substantially narrower definition of “waters of the United States” (WOTUS) through a supplemental notice revising portions of the rule proposed in November 2025.
Only Perennial Waters Would Be “Relatively Permanent”
The supplemental rule defines “relatively permanent” waters, a term left open to interpretation in Sackett and the November 2025 proposal, as perennial waters that stand or flow continuously year-round under ordinary conditions. Jurisdiction would remain despite an unusual event, such as drought, or one ordinary interruption of up to 30 consecutive days per year. Most intermittent streams would not clear the perennial bar.
A Stricter Test for Wetlands
The supplemental proposal would also significantly narrow federal jurisdiction over wetlands by requiring perennial surface water continuously connected to a jurisdictional water so that it is difficult to determine where one ends and the other begins. As with streams, limited interruptions for drought, low tide or a regularly occurring dry spell would be permitted. Merely touching a jurisdictional water would no longer be sufficient.
What This Could Mean for Development
If finalized, the proposal could significantly reduce the streams and wetlands subject to federal jurisdiction, resulting in fewer Section 404 permits for developers, lower mitigation costs, and shorter permitting timelines. State and local wetland, stormwater, floodplain and water-quality regulations would still apply.
The Rule Is Not Final
This is a supplemental proposal and not a final rule. For the development industry, the direction is encouraging: the agencies are considering clearer jurisdictional lines and a narrower federal role. Until a final rule and implementation guidance are issued, however, the current process remains unchanged.
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