The Environmental Protection Agency and the Department of the Army issued a supplemental notice of proposed rulemaking requesting additional public comment on the definition of Waters of the United States as they work toward a final rule, the EPA announced Sept. 11.
The WOTUS definition determines which bodies of water fall under federal jurisdiction under the Clean Water Act, governing which wetlands, streams, and water bodies require federal permits for development, agriculture, or industrial activities.
The supplemental comment period follows the Supreme Court’s 2023 Sackett v. EPA decision, which significantly narrowed the scope of federal water jurisdiction and required regulators to craft a new, legally defensible definition. The court ruled that the Clean Water Act covers only wetlands with a continuous surface connection to navigable waters, a standard that excluded millions of acres of previously protected wetlands.
WOTUS has been one of the most litigated environmental rules in American history, with successive administrations alternately expanding and narrowing the definition. The regulatory uncertainty has frustrated farmers, developers, and environmentalists alike, as the scope of federal jurisdiction has shifted with each administration.
For farmers and ranchers, the WOTUS definition determines whether routine agricultural activities near ditches, ponds, and seasonal streams require costly federal permits. Agricultural groups have consistently pushed for narrower definitions that exclude features they consider part of normal farming operations.
For homebuilders and developers, federal jurisdiction over wetlands and waterways adds time and cost to construction projects. The National Association of Home Builders has cited regulatory burden as a significant driver of housing costs.
Environmental groups and many state water agencies favor broader federal jurisdiction, arguing that upstream wetlands and intermittent streams play critical roles in flood control, water filtration, and habitat preservation that benefit downstream communities.
The EPA said the supplemental comment period provides an opportunity for all stakeholders to weigh in on specific elements of the proposed rule before it is finalized.