EPA Proposes Limiting Federal Water Protections to Year-Round Flowing Sources

When the Supreme Court issued its 2023 ruling in Sackett v. EPA, it restricted federal oversight to "relatively permanent" bodies of water and wetlands with a continuous surface connection to them, but left the exact hydrological thresholds undefined. Now, the Environmental Protection Agency and the U.S. Army Corps of Engineers have proposed a supplemental rule that establishes a rigid temporal boundary: to qualify for federal protection, a water body must flow every day of the year. The shift marks a significant departure from previous interpretations of the Clean Water Act, effectively removing federal jurisdiction from millions of acres of seasonal streams and isolated wetlands across the country.[1][2]

The supplemental notice, released on September 4, 2026, builds upon a November 2025 proposal that originally defined relatively permanent waters as those flowing year-round or at least during the wet season. Following significant pushback during the initial 45-day comment period, the agencies have tightened the standard. The new regulatory text limits jurisdiction to "perennial" waters, explicitly excluding seasonal or intermittent streams that only flow after heavy rainfall or snowmelt. The agencies noted that the revised definitions are intended to provide a legally defensible framework that can withstand future court challenges.[1][2]

"The EPA's goal is a durable WOTUS definition that follows the law and ends burdensome regulatory uncertainty," EPA Administrator Lee Zeldin stated in the release. The agency noted that the revised framework is designed to cut bureaucratic red tape and align strictly with the Supreme Court's directive. By narrowing the scope of the Clean Water Act, the administration is acknowledging that states and Native American tribes are better positioned to manage and regulate their own local water resources without federal interference.[1]

Under the supplemental proposal, a wetland must possess a "continuous surface connection" to a protected water body to fall under federal jurisdiction. The agencies define this as perennial surface water in a wetland that is continuously connected to a jurisdictional water, making it difficult to determine where the water ends and the wetland begins. The EPA anticipates that the majority of wetlands currently regulated as adjacent would lose federal protection under this standard, as most do not contain perennial surface water year-round.[2]

The rule does include specific exemptions for temporary interruptions in water flow to account for natural hydrological variations. A water body would not lose its relatively permanent status if it dries up due to anomalous events, such as a severe, documented drought. Additionally, the proposal establishes a 30-day "bright-line interruption" standard. This provision allows for non-anomalous temporary dry spells—such as low tides or regularly occurring dry periods—provided they do not exceed 30 consecutive days in any given year. The agencies are actively seeking public comment on whether drought should be treated as a special exception when determining a water body's permanent status.[1][2]

For the agricultural sector, the narrowed definitions represent a significant victory following decades of regulatory whiplash across successive presidential administrations. American Farm Bureau Federation President Zippy Duvall expressed strong support for the measure, noting that a clear understanding of federal jurisdiction is critical for farmers who face severe financial penalties or even jail time for unknowingly violating the Clean Water Act. Industry groups argue that the previous inclusion of seasonal features forced landowners to undergo costly and time-consuming federal permitting processes for routine land management.[2]

Conversely, the removal of the "wet season" provision means that ephemeral streams—which make up a substantial portion of the waterways in the arid American West—would fall entirely outside the purview of the Clean Water Act. The Trump administration's push to cut protections for more bodies of water shifts the regulatory burden entirely to individual states. Analysts note that stripping federal oversight from these networks could accelerate pollution and habitat loss, leaving protection dependent on a patchwork of state-level regulations that vary widely in enforcement capacity and funding.[3][4]

The EPA and the Army Corps will accept public comments on the supplemental regulatory alternatives for 30 days following their publication in the Federal Register. The agencies stated they will evaluate these new options alongside the 220,000 comments received on the 2025 proposal to finalize a rule that provides predictability for landowners, energy producers, and developers while maintaining water quality standards. Until a final rule is issued, the regulatory landscape remains fragmented, with 24 states operating under a 2023 amended rule and 26 states relying on pre-2015 frameworks.[1][4]