The Environmental Protection Agency and the U.S. Army published a Supplemental Notice of Proposed Rulemaking for the Waters of the United States definition on Sept. 4, opening an additional round of public comment on one of the most consequential and contested environmental regulations in the country.
The WOTUS definition determines which water bodies receive federal protection under the Clean Water Act, directly affecting land use decisions, agricultural operations, real estate development and environmental enforcement across millions of acres.
The supplemental notice signals the agencies are seeking more input on regulatory language before issuing a final rule. The WOTUS definition has been rewritten multiple times across administrations and challenged repeatedly in federal court, making it one of the most litigated rules in environmental law.
The Supreme Court’s 2023 Sackett v. EPA decision significantly narrowed federal wetlands jurisdiction, ruling that only wetlands with a continuous surface connection to navigable waters qualify for Clean Water Act protection. Any new WOTUS rule must conform to that decision.
Agriculture groups, including the American Farm Bureau Federation, have pushed for a narrow definition that gives farmers certainty about which water features on their land trigger federal permitting requirements. Environmental organizations have argued for broader protections, warning that a narrow definition will leave vulnerable wetlands, streams and waterways unprotected from pollution and destruction.
The development industry also has a significant stake in the outcome, as the WOTUS definition determines whether builders need federal permits for projects near water features.
The supplemental notice opens a new public comment window, the timeline for which was specified in the Federal Register publication. EPA and the Army Corps of Engineers will review submitted comments before moving to finalize the rule.
The rulemaking is expected to face legal challenges regardless of the final outcome, continuing a decades-long pattern of litigation over the scope of Clean Water Act jurisdiction.