Proposed Rule2026-18317
Updated Definition of “Waters of the United States”
Primary source
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Published
September 9, 2026
Issuing agencies
Defense DepartmentEngineers CorpsEnvironmental Protection Agency
Abstract
The purpose of this supplemental notice of proposed rulemaking is for the U.S. Environmental Protection Agency (EPA) and the Department of the Army ("the agencies") to supplement and seek additional comment on certain aspects of an earlier proposal, published on November 20, 2025, to revise the regulations defining the scope of waters federally covered under the Clean Water Act in light of the U.S. Supreme Court's 2023 decision in Sackett v. Environmental Protection Agency. As stated in the agencies' November 20, 2025 Notice of Proposed Rulemaking (NPRM), the agencies intend for this rulemaking to provide greater regulatory certainty and increase Clean Water Act program predictability and consistency by clarifying the definition of "waters of the United States." After consideration of the public comments received on the NPRM, the agencies are issuing this notice to supplement the NPRM with additional regulatory options on certain aspects of the proposed rule.
Full Text
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[Federal Register Volume 91, Number 173 (Wednesday, September 9, 2026)]
[Proposed Rules]
[Pages 57284-57301]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-18317]
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
33 CFR Part 328
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 120
[EPA-HQ-OW-2025-0322; FRL 11132.1-04-OW]
RIN 2040-AG44
Updated Definition of ``Waters of the United States''
AGENCY: Department of Defense, Department of the Army, Corps of
Engineers; U.S. Environmental Protection Agency (EPA).
ACTION: Supplemental notice of proposed rulemaking.
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SUMMARY: The purpose of this supplemental notice of proposed rulemaking
is for the U.S. Environmental Protection Agency (EPA) and the
Department of the Army (``the agencies'') to supplement and seek
additional comment on certain aspects of an earlier proposal, published
on November 20, 2025, to revise the regulations defining the scope of
waters federally covered under the Clean Water Act in light of the U.S.
Supreme Court's 2023 decision in Sackett v. Environmental Protection
Agency. As stated in the agencies' November 20, 2025 Notice of Proposed
Rulemaking (NPRM), the agencies intend for this rulemaking to provide
greater regulatory certainty and increase Clean Water Act program
predictability and consistency by clarifying the definition of ``waters
of the United States.'' After consideration of the public comments
received on the NPRM, the agencies are issuing this notice to
supplement the NPRM with additional regulatory options on certain
aspects of the proposed rule.
DATES: Comments must be received on or before October 9, 2026.
ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OW-2025-0322, by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>
(our preferred method). Follow the online instructions for submitting
comments.
<bullet> Email: <a href="/cdn-cgi/l/email-protection#347b6319705b575f5140745144551a535b42"><span class="__cf_email__" data-cfemail="6c233b4128030f0709182c091c0d420b031a">[email protected]</span></a>. Include Docket ID No. EPA-HQ-OW-
2025-0322 in the subject line of the message.
<bullet> Mail: U.S. Environmental Protection Agency, EPA Docket
Center,
[[Page 57285]]
Water Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW,
Washington, DC 20460.
<bullet> Hand Delivery or Courier: EPA Docket Center, WJC West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The Docket Center's hours of operations are 8:30 a.m. to 4:30 p.m.,
Monday through Friday (except Federal Holidays).
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, including personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the ``Written Public
Comments'' heading of the SUPPLEMENTARY INFORMATION section of this
document.
FOR FURTHER INFORMATION CONTACT: Stacey Jensen, Office of Wetlands,
Oceans, and Watersheds, Office of Water (4504-T), Environmental
Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460;
telephone number: (202) 566-0657; email address: <a href="/cdn-cgi/l/email-protection#1c5f4b5d6b7368696f5c796c7d327b736a"><span class="__cf_email__" data-cfemail="b2f1e5f3c5ddc6c7c1f2d7c2d39cd5ddc4">[email protected]</span></a>, and
Milton Boyd, Office of the Assistant Secretary of the Army for Civil
Works, Department of the Army, 108 Army Pentagon, Washington, DC 20310-
0104; telephone number: (703) 693-3655; email address:
<a href="/cdn-cgi/l/email-protection#384d4b594a554116485d564c595f57561650495c5915594b59155b4f16555a4016594b59155b4f154a5d48574a4c51565f78594a554116555154"><span class="__cf_email__" data-cfemail="b5c0c6d4c7d8cc9bc5d0dbc1d4d2dadb9bddc4d1d498d4c6d498d6c29bd8d7cd9bd4c6d498d6c298c7d0c5dac7c1dcdbd2f5d4c7d8cc9bd8dcd9">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Written Public Comments
II. General Information
A. What action are the agencies taking?
B. What is the agencies' authority for taking this action?
III. Background and Purpose of This Supplemental Notice
IV. Initial Notice of Proposed Rulemaking
A. Summary of the Initial Notice of Proposed Rulemaking
B. Comments on the Initial Notice of Proposed Rulemaking
V. Supplements to Proposed Rule in This Supplemental Notice and
Requests for Comment
A. Summary of the Supplements to the Regulatory Options for the
Proposed Rule
B. ``Relatively Permanent'' Waters
1. Summary of Initial Proposed Definition and Relevant Comments
Received on ``Relatively Permanent''
2. Supplemental Option for the Definition of ``Relatively
Permanent''
a. Implementation
b. Potential Reliance Interests
C. ``Continuous Surface Connection'' Waters
1. Summary of Initial Proposed Definition and Relevant Comments
Received on ``Continuous Surface Connection''
2. Supplemental Option for the Definition of ``Continuous
Surface Connection''
a. Implementation
b. Potential Reliance Interests
VI. Supporting Information
A. Economic Analysis
1. ``Relatively Permanent''
2. ``Continuous Surface Connection''
3. Programmatic Impacts
B. Children's Health
VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review;
Executive Order 13563: Improving Regulation and Regulatory Review
B. Executive Order 14192: Unleashing Prosperity Through
Deregulation
C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act (UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risk
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
J. National Technology Transfer and Advancement Act
I. Written Public Comments
Submit your comments, identified by Docket ID No. EPA-HQ-OW-2025-
0322, at <a href="https://www.regulations.gov">https://www.regulations.gov</a> (our preferred method), or the
other methods identified in the ADDRESSES section of this document.
Once submitted, comments cannot be edited or removed from the docket.
EPA may publish any comment received to its public docket. Do not
submit to EPA's docket at <a href="https://www.regulations.gov">https://www.regulations.gov</a> any information
you consider to be Confidential Business Information (CBI), Proprietary
Business Information (PBI), or other information whose disclosure is
restricted by statute. Multimedia submissions (audio, video, etc.) must
be accompanied by a written comment. The written comment is considered
the official comment and should include discussion of all points you
wish to make. EPA will generally not consider comments or comment
contents located outside of the primary submission (i.e., on the web,
cloud, or other file sharing system). Please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a> for additional submission methods; the
full EPA public comment policy; information about CBI, PBI, or
multimedia submissions; and general guidance on making effective
comments.
II. General Information
A. What action are the agencies taking?
In this action, the agencies are publishing a supplemental notice
of proposed rulemaking (SNPRM) to revise the definition of ``waters of
the United States'' in 33 CFR 328.3 and 40 CFR 120.2. This SNPRM
supplements the proposed regulatory text in the NPRM, published on
November 20, 2025 (90 FR 52498), for certain components of the proposal
and seeks public input on these additional regulatory alternatives. The
agencies are not proposing to supplement other portions of the initial
proposed rule and continue to review and consider public comments
received on the November 2025 NPRM.
B. What is the agencies' authority for taking this action?
The authority for this action is the Federal Water Pollution
Control Act, 33 U.S.C. 1251 et seq., including sections 301, 304, 311,
401, 402, 404, and 501.
III. Background and Purpose of This Supplemental Notice
On November 20, 2025 (90 FR 52498), the agencies proposed a rule
that would revise key aspects of the definition of ``waters of the
United States'' to clarify the scope of Federal jurisdiction under the
Federal Water Pollution Control Act, as amended, also known as the
Clean Water Act, in light of the U.S. Supreme Court's May 25, 2023
decision in Sackett v. Environmental Protection Agency, 598 U.S. 651
(2023). This document supplements the proposed rule. The agencies refer
the public to the November 2025 NPRM for more information on the
background for this action, including the history of the Clean Water
Act, relevant case law, current and prior regulatory regimes, and the
need for a revised definition of ``waters of the United States.''
Since publishing the proposed rule, the agencies received
approximately 220,000 public comments on the NPRM and heard from a wide
number and variety of States and Tribal governments, industry groups,
agricultural producers, non-profit advocacy groups, interagency
partners, and other stakeholders regarding the proposed revised
definition of ``waters of the United States.'' Many of these commenters
requested additional clarification regarding the agencies' proposed
rule and the alternative approaches for which the agencies solicited
comment. In addition, some commenters recommended the agencies consider
other approaches not explicitly articulated in the NPRM. The agencies
have summarized some key points from
[[Page 57286]]
public comments in section V of this preamble. With this SNPRM, the
agencies are supplementing certain components of the proposed rule by
soliciting comment on new regulatory text options for specific
definitions in paragraph (c) of the regulations. The supplemental
regulatory options were developed based on the agencies' analysis of
the public comments and stakeholder input received on the proposed rule
in the agencies' NPRM. The agencies solicit public comments regarding
the information and issues presented in this SNPRM. The agencies
continue to review and consider public comments received in response to
all components of the NPRM, including those that are not supplemented
by this SNPRM. The agencies will consider and address those previously
submitted comments on the proposed rule, in addition to new comments
submitted in response to this SNPRM, in taking final action on this
rulemaking. As such, commenters should not resubmit comments already
provided in response to the agencies' NPRM.
IV. Initial Notice of Proposed Rulemaking
A. Summary of the Initial Notice of Proposed Rulemaking
In the NPRM, the agencies proposed to revise the following
categories of ``waters of the United States'' under 33 CFR 328.3 and 40
CFR 120.2 paragraph (a) by deleting the interstate waters category
under paragraph (a)(1)(iii) and deleting ``intrastate'' from the
paragraph (a)(5) category for lakes and ponds. Ministerial changes were
proposed to add in one place and delete in another place an ``or'' from
paragraph (a)(1) to conform to the proposed deletion of the interstate
waters category. In addition, the agencies proposed to revise the
following exclusions: the (b)(1) waste treatment system exclusion, the
(b)(2) prior converted cropland exclusion, and the (b)(3) ditch
exclusion. The agencies also proposed adding an exclusion for
groundwater at (b)(9). The agencies further proposed to add definitions
of ``continuous surface connection,'' ``ditch,'' ``prior converted
cropland,'' ``relatively permanent,'' ``tributary,'' and ``waste
treatment system'' in paragraph (c) of their regulations. The NPRM also
contained additional requisite conforming edits in light of the
aforementioned proposed changes.
B. Comments on the Initial Notice of Proposed Rulemaking
The agencies accepted comments on the NPRM from November 20, 2025,
through January 5, 2026. The agencies received approximately 220,000
comments on the NPRM from a broad spectrum of interested parties. Some
commenters expressed support for the agencies' proposal, stating, among
other things, that the proposed rule is consistent with Sackett. Other
commenters opposed the proposal, stating, among other things, that the
proposed rule would increase regulatory uncertainty and adversely
impact water quality.
Based on the agencies' careful and ongoing review of the comments
submitted in response to the NPRM, the agencies believe that it is in
the public interest to provide further explanation and allow interested
parties an opportunity to comment on these supplemental options for
targeted definitions of certain regulatory terms and implementation of
those terms.
V. Supplements to Proposed Rule in This Supplemental Notice and
Requests for Comment
A. Summary of the Supplements to the Regulatory Options for the
Proposed Rule
In this SNPRM, the agencies are seeking comment on supplemental
regulatory options for the revised definitions of ``relatively
permanent'' and ``continuous surface connection,'' and adding a
definition of the term ``perennial,'' which, if finalized, would result
in a renumbering of the existing and previously proposed definitions in
paragraph (c) of the regulatory text, along with other conforming
edits. The agencies continue to consider the regulatory options
proposed in the NPRM in tandem with the consideration of these
supplemental regulatory options and any comments received in response
to this SNPRM pertaining to these supplemental regulatory options.
In this SNPRM, the agencies are not proposing new regulatory
options to the initial proposed removal of ``interstate waters'' at
paragraph (a)(1)(iii) or the initial proposed removal of the word
``intrastate'' from paragraph (a)(5). 90 FR 52498, 52516 and 52517
(proposed removal of ``interstate waters''), 52533 (proposed removal of
the word ``intrastate'') (November 20, 2025). Consistent with the NPRM,
this SNPRM also does not suggest additional options for changes to the
remaining portions of paragraph (a)(1) or to paragraphs (a)(2), (3), or
(4), other than conforming edits in light of the aforementioned
proposed changes unless as expressly stated otherwise in this preamble.
Additionally, this SNPRM does not supplement the regulatory options
for the previously proposed exclusions for waste treatment systems at
paragraph (b)(1), prior converted cropland at paragraph (b)(2), certain
ditches at paragraph (b)(3), and groundwater at (b)(9) from the initial
notice of proposed rulemaking. 90 FR 52533 through 52541(November 20,
2025). Consistent with the discussion in the NPRM, this SNPRM also
would make no changes to the existing exclusions in paragraphs (b)(4)
through (8) other than conforming edits in light the proposed exclusion
at paragraph (b)(9).
Additionally, this SNPRM makes no further changes to the initial
proposed definitions for ``ditch,'' ``prior converted cropland,''
``tributary,'' or ``waste treatment system.'' 90 FR 52521 through 23,
52533 through 52541(November 20, 2025).
B. ``Relatively Permanent'' Waters
1. Summary of Initial Proposed Definition and Relevant Comments
Received on ``Relatively Permanent''
In Sackett, the Supreme Court interpreted the jurisdictional extent
of ``navigable waters'' under the Clean Water Act. 598 U.S. at 671-74.
Part III.A of the Court's opinion sets out the test for determining
which ``waters'' constitute ``waters of the United States.'' Id. In
Part III.A, the Court held that the Act's ``use of `waters' encompasses
`only those relatively permanent, standing or continuously flowing
bodies of water ``forming geographic[al] features'' that are described
in ordinary parlance as ``streams, oceans, rivers, and lakes.'' ' ''
Id. at 671 (quoting Rapanos v. United States, 547 U.S. 715, 739 (2006)
(plurality op.)).
In the NPRM, the agencies proposed to define ``relatively
permanent'' to mean ``standing or continuously flowing bodies of
surface water that are standing or continuously flowing year-round or
at least during the wet season.'' See 90 FR 52545 (November 20, 2025).
The agencies solicited comment on the proposed definition of
``relatively permanent,'' including implementation of the definition
and regional implications of the proposed approach. The agencies also
solicited comment on a number of alternative approaches, such as
defining ``relatively permanent'' to mean only perennial; a minimum
flow volume threshold; a minimum flow duration metric (e.g., 30, 90, or
270 days) or bright lines applicable by region; physical indicators of
flow; or waters that typically have standing or flowing water year-
round or continuously at least seasonally.
The agencies received a wide range of comments on the previous
proposed definition of ``relatively permanent,''
[[Page 57287]]
with some commenters supporting the proposed definition and other
commenters objecting to the proposed definition or supporting an
alternative definition. Many of those commenters supporting the
proposed definition of ``relatively permanent'' stated that the
proposed definition was consistent with Sackett and the Rapanos
plurality. Many of those opposed to the proposed definition stated that
the proposed rule went beyond what Sackett and Rapanos require, while
another commenter stated that the agencies failed to provide a rational
basis for revising the current practice for the implementation of
``relatively permanent.'' Certain commenters requested that
intermittent waters continue to be subject to Federal jurisdiction
under the Clean Water Act, and some advocated for Federal jurisdiction
of ephemeral streams due to the many functions such streams serve.
Some commenters supported the agencies' concept of ``wet season''
incorporated into the proposed definition in the NPRM, while other
commenters expressed various concerns with the concept or the potential
challenges associated with its implementation. Some commenters opposing
the proposed rule's definition of ``relatively permanent'' stated that
the Supreme Court intended for jurisdictional waters to flow
continuously for a duration longer than the wet season and thus claimed
that the proposal did not go far enough in implementing the Sackett
decision. Other commenters stated that the ``wet season'' approach in
the proposed rule appropriately incorporated ``seasonal'' waters and
accounted for extraordinary circumstances such as droughts.
Additionally, some commenters stated that the ``wet season'' approach
in the proposed rule allowed for geographic variability across the
United States.
One alternative approach the agencies solicited comment on was
whether to limit the definition of ``relatively permanent'' to include
only ``perennial'' waters. The agencies evaluated this interpretation
because ``perennial'' streams are most obviously ``permanent,''
consistent with the Sackett decision and the Rapanos plurality. Some
commenters supported this approach, while many other commenters opposed
this approach.
The agencies also solicited comment on whether they should adopt a
minimum flow duration metric (e.g., 30, 90, or 270 days) or bright
lines set by region, e.g., by requiring flow a minimum of 270 days east
of the Mississippi River and a minimum of 30 or 60 days west of the
Mississippi, for ``relatively permanent'' waters. Some commenters
expressed support for these alternative approaches, with some
supporting a minimum flow duration or flow volume metric (e.g., at
least 30 days, at least 90 consecutive days, at least 270 days, or at
least 95% of the year). Some commenters expressed support for a more
regionalized threshold approach, with a few such commenters supporting
a 90-day threshold for the western States and another commenter
opposing a nationwide threshold and instead stating that minimum flow
duration thresholds should be carefully tailored to the region where
the metric is applied. One commenter said that 270 days is generally
aligned with the Rapanos example of a 290-day continuously flowing
stream being considered ``relatively permanent.'' Other commenters
opposed minimum flow durations or flow volume metrics, stating that
such thresholds are not scientifically grounded.
A few commenters opposing these alternative approaches stated that
it is natural for flow to fluctuate, while another commenter stated
that time-based thresholds are artificial and do not account for
regional variability. Some commenters said that a bright-line rule
would be arbitrary and capricious under the Administrative Procedure
Act without an adequate basis in the Clean Water Act or Supreme Court
interpretations and alleged such a rule would undermine the goals of
the Clean Water Act by harming downstream water quality. Another
commenter asserted that a rigid minimum flow duration is inconsistent
with the Clean Water Act objective at section 101(a). A few commenters
expressed implementation concerns with bright lines, such as a minimum
number of days of flow, with some commenters stating that such an
approach would require repeated site visits or continuous daily
monitoring to determine, for example, whether a stream flows 289 days
or 290 days.
The agencies also solicited comment on an alternative approach to
defining ``relatively permanent'' using only physical indicators of
flow, such as evidence of an ordinary high water mark and bed and
banks. Some commenters supported such an approach, stating that such an
approach is familiar to the agencies. One such commenter stated that
physical indicators represent long-term recorded response to typical
flow conditions and therefore are more reliable indications of
relatively permanent waters than a single year observation of flow
presence or absence. Other commenters, however, opposed such an
approach, noting that even ephemeral streams have physical indicators
of flow. A few commenters stated that such indicators can result from a
single high-water event and do not, by themselves, establish a
relatively permanent body of water. One commenter stated reliance on
physical characteristics is inconsistent with the directives of the
Supreme Court in Sackett.
The agencies also solicited comment on whether ``relatively
permanent'' should be defined consistent with the pre-2015 regulatory
regime, as articulated in the Rapanos Guidance, such that ``relatively
permanent'' waters are those that typically have standing or flowing
water year-round or that have standing or continuously flowing water at
least seasonally (e.g., typically three months).\1\ The agencies also
solicited comment on if they should implement seasonal flow to mean
continuous surface flow except during dry months. The agencies also
welcomed comments generally on the concept of a ``seasonal'' flow
duration and what that term may include, as well as implementation
tools that could be used to identify such flow duration. Many
commenters supported the pre-2015 regulatory regime, as articulated in
the Rapanos Guidance, stating that they believe that it explicitly
incorporates the ``seasonal'' term used in the Rapanos plurality
opinion. Some commenters in support of this Rapanos Guidance
alternative approach stated that it reflects the approach taken by the
agencies since the Rapanos Guidance has been in effect, meaning that
practitioners would have experience implementing it, whereas the
proposed approach would be more difficult to implement. Some commenters
supportive of this alternative approach also stated that it properly
accounts for regional variation. Other commenters, however, opposed
this alternative approach, stating that the Rapanos Guidance's seasonal
approach (``e.g., typically three months'') is inconsistent with
Rapanos and Sackett. One commenter recommended that ``wet season'' be
defined as ``continuous surface flow except during dry months,'' while
a different commenter stated that the Rapanos plurality acknowledged
[[Page 57288]]
that ``seasonal rivers'' may qualify as relatively permanent, but
limited that discussion to rivers that maintain continuous flow for
extended periods and then dry up during dry months. Another commenter
did not recommend limiting ``relatively permanent'' to continuous flow
except during dry months, stating that such an alternate approach is
inviable, inefficient, and unimplementable in the field.
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\1\ Three months was provided as an example of seasonal flow in
the Rapanos Guidance, but under the pre-2015 regulatory regime the
agencies have flexibility to determine what seasonally means in a
specific case. See Rapanos Guidance at 6-7; U.S. Environmental
Protection Agency & U.S. Army Corps of Engineers ``Memorandum to
Assert Jurisdiction for NWP-2007-945'' available at <a href="https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll5/id/1437">https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll5/id/1437</a> (finding that two months of continuous flow was considered
seasonal flow for site-specific tributaries in a semi-arid region).
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2. Supplemental Option for the Definition of ``Relatively Permanent''
Having already received comment on the options set out in the
initial proposal, the agencies are now seeking comment on a
supplemental option to define ``relatively permanent'' that would
generally deem a water to be jurisdictional only if it is perennial
(i.e., has standing or continuously flowing water every day of the year
during ordinary conditions),\2\ with certain exceptions affecting year-
round flow, such as the occurrence of certain non-anomalous events
resulting in a temporary interruption (e.g., low tide or a regularly
occurring dry spell) or anomalous events resulting in extraordinary
circumstances (e.g., drought) that disrupt a perennial water's year-
round flow. ``Relatively permanent'' would therefore only include
perennial waters, but perennial waters with flow that dries up due to
anomalous events such as drought or due to non-anomalous events such as
low tide or a regularly occurring dry spell would still be
jurisdictional. Under this supplemental option, ``relatively
permanent'' would be defined to mean ``perennial bodies of water.'' The
definition would also state that ``A body of water does not lose its
relatively permanent status if it dries up as a result of anomalous
events such as drought or dry spell. A body of water also does not lose
its relatively permanent status if it dries up for no more than a
single period of up to 30 consecutive days in any given year as a
result of non-anomalous events resulting in a temporary interruption
such as low tide or a regularly occurring dry spell.'' The agencies
note that the qualifier ``a single period'' is intended to convey that
the interruption of flow can only occur once in any given year, up to
30 consecutive days, under this concept. When flow is interrupted for
more than a single period in any given year, and the interruptions are
non-anomalous and ordinary for that water body, the agencies would
consider this to be an ephemeral or intermittent feature even if each
period of interruption does not amount to 30 consecutive days. For
instance, if flow is interrupted for two periods in any given year, and
each period consists of 10 consecutive days of no flow, the water body
would not be jurisdictional when these interruptions are non-anomalous.
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\2\ This definition is informed by the common meaning of
``perennial'' used in hydrology (see, e.g., the U.S. Geological
Survey's Water Basics Glossary, defining ``Perennial stream'' as ``A
stream that normally has water in its channel at all times,''
available at <a href="https://water.usgs.gov/water-basics_glossary.html#P">https://water.usgs.gov/water-basics_glossary.html#P</a>.
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Under this supplemental option, the agencies are also proposing to
define ``perennial.'' The agencies seek comment on defining perennial
as ``having standing or continuously flowing water every day of the
year during ordinary conditions.'' This definition is consistent with
the common hydrologic understanding of the term ``perennial.'' The
agencies also solicit comment on whether they should define
``perennial'' consistent with the 2020 Navigable Waters Protection Rule
to mean ``surface water flowing continuously year-round.'' See 85 FR
22250, 22339 (April 21, 2020). The agencies are looking to the
dictionary definition of ``extraordinary'' to inform anomalous events,
as ``something that is unusual or caused by unforeseen circumstances or
conditions.'' \3 \ Such anomalous events are extraordinary departures
from ordinary conditions. For example, droughts are often very
difficult to forecast and are caused by a complex number of factors.
Droughts are also an extraordinary departure from the ordinary climatic
conditions. There also may be scenarios whereby a dry spell--not
necessarily rising to the level of categorical drought--happens in an
anomalous way that may be an extraordinary departure from ordinary
conditions. In contrast, non-anomalous events would be a temporary
interruption that occurs ordinarily such as low tide or a regularly
occurring dry spell that is generally predictable and expected. For
example, consistent with the agencies' definition of ``tidal waters''
at paragraph (c)(5), a low tide is predictable and measurable due to
the gravitational pulls of the moon and sun. A non-anomalous dry spell
is meant to encompass a regular, predictable period of dry weather that
typically happens around the same time every year. For example, if a
stream ordinarily dries up for 30 consecutive days in August due to
normal climatic conditions, such a stream would maintain its perennial
status under this proposed definition of ``perennial.'' A temporary
interruption in standing or continuously flowing water lasting no more
than a single period of up to 30 consecutive days in any given year as
a result of such non-anomalous events under ordinary conditions would
not prevent a water from being perennial and thus relatively permanent.
Ordinary conditions here would mean the climatic conditions that
ordinarily prevail at a particular place and time of year. However,
under this proposed definition, any non-anomalous temporary
interruption exceeding a single period of up to 30 consecutive days in
any given year would preclude a waterbody from being considered
``relatively permanent.'' The agencies note that they are choosing to
propose a temporal qualifier of 30 consecutive days because it most
closely aligns with the regular and predictable nature of a ``non-
anomalous'' dry spell event that, for example, may occur over the
course of a month in any given year. The proposed concept would allow
for the temporary interruption to span over the course of two calendar
months, as long as the interruption does not exceed 30 consecutive
days. This concept also aligns with the agencies' intent to propose a
rule that provides certainty and clarity for landowners and is easily
administrable for the implementing agencies. However, the agencies are
seeking additional input on whether a different numerical threshold is
more consistent with Sackett and the Rapanos plurality.
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\3\ ``Anomalous'' is generally defined as ``inconsistent with or
deviating from what is usual, normal, or expected: irregular,
unusual.'' Anomalous, Merriam-Webster (2026); see Anomalous, Black's
Law Dictionary (2nd ed.) (``Irregular; exceptional; unusual'').
``Extraordinary'' is generally defined as ``going beyond what is
usual, regular, or customary.'' Extraordinary, Merriam-Webster
(2026); see Extraordinary expense, Black's Law Dictionary 723 (11th
ed. 2019) (``unusual or infrequent,'' caused ``by an unforeseen
condition such as a natural disaster'').
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As noted by some commenters, waters that are perennial are most
obviously ``permanent,'' and thus meet any ``relatively permanent''
threshold consistent with the Sackett decision. In addition, because
the term ``relatively'' in Sackett and the Rapanos plurality suggests
that Clean Water Act jurisdiction is not limited to waters that are
always standing or continuously flowing, this supplemental option
explicitly clarifies that such waters can still be ``relatively
permanent'' even if they dry up due to a temporary interruption (i.e.,
non-anomalous events) and extraordinary circumstances (i.e., anomalous
events) identified in Sackett and the Rapanos plurality: low tides, dry
spells (both regularly and non-regularly occurring), and drought.
The agencies solicit comment on these definitions of ``relatively
permanent'' and ``perennial'' or other
[[Page 57289]]
alternative definitions to these terms. The agencies also solicit
comment on the applicability of the definitions to both anomalous and
non-anomalous events. This supplemental option reflects the agencies'
consideration of public and stakeholder input on the NPRM as summarized
in section V.B.1 of this preamble above, and a thorough review of the
language in Sackett and the Rapanos plurality. The agencies considered
public comments addressing, among other issues, challenges with
implementing the concept of ``wet season'' within the proposed
definition of ``relatively permanent.''
This supplemental option would provide transparency and regulatory
certainty for landowners, is easy to understand, and responds to
comments that requested a bright line approach. The previously proposed
definition considered streamflow duration in the flow classification
definitions generally (e.g., ``flowing continuously year-round,''
``flowing continuously during the wet season''), but without setting a
minimum duration of flow. As many commenters noted, establishing a
minimum duration of flow could ultimately enhance national consistency
per the regulatory text, and is consistent with the Sackett decision.
Consistent with the jurisdictional test advanced by Sackett, this
supplemental option focuses on waters that are perennial with limited
exceptions during anomalous events (i.e., extraordinary circumstances)
or non-anomalous events resulting in a temporary interruption in
continuously flowing or standing water. Waters that are perennial are
most obviously ``permanent,'' and thus qualify as ``relatively
permanent.'' Additionally, the agencies' proposal of this supplemental
option recognizes that ``relatively permanent'' may also describe the
flow of otherwise ``permanent'' waters that may be interrupted by
extraordinary circumstances (i.e., anomalous events) such as drought.
Furthermore, the Sackett decision stated, ``We also acknowledge that
temporary interruptions in surface connection may sometimes occur
because of phenomena like low tides or dry spells.'' Sackett, 598 U.S.
at 678. Thus, such non-anomalous events would also not disqualify a
water from being ``relatively permanent'' so long as the temporary
interruption in standing or continuously flowing water lasts no more
than a single period of up to 30 consecutive days in any given year.
Though this language was specific to ``continuous surface connection,''
the agencies are also considering whether it informs the definition of
``relatively permanent,'' because both inquiries require determining at
what point a feature has the requisite connection with a jurisdictional
water to itself be considered ``waters of the United States.'' See id.
at 672 (``Although we have acknowledged that the CWA extends to more
than traditional navigable waters, we have refused to read `navigable'
out of the statute, holding that it at least shows that Congress was
focused on `its traditional jurisdiction over waters that were or had
been navigable in fact or which could reasonably be so made.' ''); id.
at 673 (``SWANCC went even further, repeatedly describing the `waters'
covered by the Act as `open water' and suggesting that `the waters of
the United States' principally refers to traditional navigable
waters.''); id. at 678 (``[T]he adjacent [body of water constitutes] .
. . `water[s] of the United States,' (i.e., a relatively permanent body
of water connected to traditional interstate navigable waters)'')
(alteration in original). Thus, under this supplemental option, the
agencies' view the temporary drying up of waters as the result of low
tide or a dry spell to also reflect circumstances whereby otherwise
``permanent'' waters are defined as ``relatively permanent.'' The
agencies solicit comment on whether this supplemental option
appropriately aligns with the statutory text, Sackett, and other
relevant case law.
Requiring perennial flowing or standing water (with the exception
of a temporary interruption due to certain non-anomalous events or as a
result of anomalous events) may also align with the Rapanos plurality's
statement that dictionary definitions make clear that the use of ``the
waters'' in the statutory term ``the waters of the United States''
narrowly refers to ``continuously present, fixed bodies of water, as
opposed to ordinarily dry channels through which water occasionally or
intermittently flows'' and that ``[e]ven the least substantial of the
definition's terms, namely `streams,' connotes a continuous flow of
water in a permanent channel'' and that ``[n]one of these terms
encompasses transitory puddles or ephemeral flows of water.'' 547 U.S.
at 732-33; see also id. (``The use of the definite article (`the') and
the plural number (`waters') shows plainly that Sec. 1362(7) does not
refer to water in general. In this form, `the waters' refers more
narrowly to water `[a]s found in streams and bodies forming
geographical features such as oceans, rivers, [and] lakes[.]' '')
(alteration in original).
The agencies are thus considering whether perennial most closely
reflects the text of the Clean Water Act as interpreted in Sackett.
Additionally, use of the perennial standard may also closely comport
with Sackett's two background presumptions. First, this interpretation
`` `preserve[s]' the States' `primary' authority over land and water
use[,]'' ensuring the Federal Government's jurisdiction is limited to
that which they have ``clear evidence that it is authorized to
regulate,'' and is focused principally on ``navigable water like
rivers, lakes, and oceans.'' Sackett, 598 U.S. at 672, 679-80. Second,
this interpretation limits jurisdiction to those cases in which
landowners have clear notice of their obligations under the Clean Water
Act. Id. at 680. As discussed below, the concept of perennial water,
temporarily broken only by certain anomalous or non-anomalous events,
is understandable to landowners and does not leave property owners ``to
feel their way on a case-by-case basis.'' Id. at 681.
The modifier ``relatively'' qualifies the term ``permanent,'' but
it cannot cancel it out altogether. In other words, ``relatively''
cannot stretch the meaning of ``permanent'' to the point that
``permanent'' would encompass flow for significantly less than the
majority of the time. Indeed, such an interpretation would be in
tension with the Supreme Court's interpretation in Sackett that ``the
CWA's use of `waters' encompasses `only those relatively permanent,
standing or continuously flowing bodies of water ``forming
geographic[al] features'' that are described in ordinary parlance as
``streams, oceans, rivers, and lakes.'' ' '' 598 U.S. at 671 (citing
Rapanos, 547 U.S. at 739) (quoting Webster's New International
Dictionary 2882 (2nd ed. 1954); (original alterations omitted)). This
description does not appear to encompass waters that would flow
significantly less than the majority of the time.
The agencies are considering whether this supplemental option best
reflects the plain meaning of ``relatively permanent.'' Additionally,
under this supplemental option, the agencies would define the term
``perennial'' in the regulatory text at paragraph (c) to provide
clarity for implementation. In this supplemental option, drought \4\
would be one type of anomalous event that would allow a normally
jurisdictional water to remain
[[Page 57290]]
jurisdictional in the absence of year-round flow. Such anomalous events
are an extraordinary departure from ordinary conditions. The U.S.
Drought Monitor uses four levels of drought: moderate (D1), severe
(D2), extreme (D3) and exceptional (D4).\5\ The agencies are
considering implementing drought under this supplemental option such
that only extreme (D3) and exceptional (D4) droughts would qualify as
anomalous drought conditions that can temporarily interrupt perennial
flow, and can extend continuously across no more than a five-year
timeframe, after which the drought condition would be nullified for
purposes of identifying ``relatively permanent'' waters, and that water
would no longer be jurisdictional under its ordinary conditions as the
interruption has ceased to be `anomalous.' A five-year timeframe is
consistent with the five-year expiration date of an approved
jurisdictional determination under existing Army Corps of Engineers
(Corps) guidance. See Regulatory Guidance Letter (RGL) 05-02 (June 14,
2005). The agencies believe that by aligning the duration of the
temporary interruption with the effective period of an approved
jurisdictional determination, the concept would be easily administrable
by the agencies and understood by those persons or entities seeking the
determinations. The agencies solicit comment on the appropriateness of
using a five-year timeframe for interpreting ``drought.''
---------------------------------------------------------------------------
\4\ ``Drought'' is generally defined as ``a period of dryness
especially when prolonged.'' Drought, Merriam-Webster (2026).
\5\ See <a href="https://droughtmonitor.unl.edu/About/WhatistheUSDM.aspx">https://droughtmonitor.unl.edu/About/WhatistheUSDM.aspx</a>.
---------------------------------------------------------------------------
In addition, a temporary interruption in ordinary conditions, such
as low tide or a regularly occurring dry spell,\6\ would be another
type of circumstance by which a water can remain ``relatively
permanent,'' so long as these conditions do not last more than a single
period of up to 30 consecutive days in any given year. The agencies
acknowledge that waters that may experience low tides likely also fall
under paragraph (a)(1) waters where they are subject to the ebb and
flow of the tide.
---------------------------------------------------------------------------
\6\ ``Dry spell'' is generally defined as ``a period of dry
weather.'' Dry spell, Merriam-Webster (2026).
---------------------------------------------------------------------------
The agencies are considering whether this supplemental option would
also align with the policy of Congress in Clean Water Act section
101(b) recognizing and respecting the primary responsibilities and
rights of States to regulate their land and water resources. With this
supplemental option for the definition of ``relatively permanent,'' the
agencies seek to avoid ``impairing or in any manner affecting any right
or jurisdiction of the States with respect to waters (including
boundary waters) of such States.'' See 33 U.S.C. 1370. States and
Tribes would be free to address rivers, lakes, streams, ponds, and
other features that do not meet the supplemental option for the
definition of ``relatively permanent'' and that otherwise do not meet
the definition of ``waters of the United States'' as ``waters of the
State'' or ``waters of the Tribe'' under their own laws to the extent
they deem appropriate, as envisioned under section 101(b) of the Clean
Water Act.
The supplemental proposal for ``relatively permanent'' would
require that a water maintain standing or continuously flowing water
for every day of the year, except under anomalous events such as a
drought or dry spell or non-anomalous events such as low tide or a
regularly occurring dry spell. This approach is generally consistent
with one of the alternative approaches included in the NPRM, see 90 FR
52519, though the agencies have modified this approach to allow for two
exceptions from year-round flow. A body of water does not lose its
relatively permanent status if it dries up as a result of anomalous
events such as drought or dry spell, or as a result of non-anomalous
events such as low tide and a regularly occurring dry spell that do not
last more than a single period of up to 30 consecutive days in any
given year. This temporal component is not tied specifically to the
same calendar year, so, for example, the year could span from September
of one calendar year to August of the following calendar year.
Tributaries without standing or continuously flowing water every
day of the year, except for under certain anomalous or non-anomalous
events, would thus not be considered ``relatively'' permanent. Under
this supplemental option, a temporary interruption in standing or
continuously flowing water due to non-anomalous events such as low
tides and a regularly occurring dry spell would need to be of a
duration of no more than a single period of up to 30 consecutive days
or shorter in any given year for a water to meet the definition of
``relatively permanent.'' While there are no precise, scientifically-
grounded, nationally consistent time limits for the durations of the
temporary interruption due to non-anomalous events like low tide or a
regularly occurring dry spell, a 30-day limit, which is roughly the
length of a month, would establish a bright line duration that would be
predictable, transparent, and easy to administer. In consideration of
the length of a year, a 30-day limit is a reasonable approach to
identifying something ``temporary'' in nature. Moreover, such a limit
addresses concerns about administrability raised by the Sackett
opinion, which sought a solution that would obviate the need for
property owners ``to retain an expensive expert consultant'' to assess
Clean Water Act jurisdiction. See 598 U.S. at 670. A waterbody that
does not meet this proposed interpretation of ``relatively permanent,''
would be the type of ``intermittent'' or ``ephemeral'' feature that
does not meet the definition of ``waters'' under the Clean Water Act.
See Sackett, 598 U.S. at 672 (``[T]he use of `navigable' signals that
the definition principally refers to bodies of navigable water like
rivers, lakes, and oceans.''); Rapanos, 547 U.S. at 733 (``All of these
terms connote continuously present, fixed bodies of water, as opposed
to ordinarily dry channels through which water occasionally or
intermittently flows. Even the least substantial of the definition's
terms, namely `streams,' connotes a continuous flow of water in a
permanent channel--especially when used in company with other terms
such as `rivers,' `lakes,' and `oceans. '''); Rapanos, 547 U.S. at 733
n.6 (``The principal definition of `stream' likewise includes reference
to such permanent, geographically fixed bodies of water . . . . The
other definitions of `stream' repeatedly emphasize the requirement of
continuous flow . . . . Justice KENNEDY apparently concedes that `an
intermittent flow can constitute a stream' only `while it is flowing,'
post, at 2243 (emphasis added)--which would mean that the channel is a
`water' covered by the Act only during those times when water flow
actually occurs. But no one contends that Federal jurisdiction appears
and evaporates along with the water in such regularly dry channels.'').
The agencies solicit comment on whether any other time frame would be
more appropriate to sever jurisdiction as the result of the occurrence
of a temporary interruption due to a non-anomalous event such as a low
tide or regularly occurring dry spell.
a. Implementation
The agencies assert that this supplemental option to defining
``relatively permanent'' could further simplify implementation of the
rule. If members of the public see that waters dry up in circumstances
other than during anomalous events (e.g., drought and non-regularly
occurring dry spells) or non-anomalous events (e.g., low tides,
regularly occurring dry spells), they would know those waters would not
be jurisdictional under this supplemental option simply by observation,
without the need for any
[[Page 57291]]
further analysis or professional consultation. To illustrate how this
supplemental option would work in practice, a body of water would
remain jurisdictional even if it lacked flow for a single period of up
to 30 consecutive days in any given year during a dry spell. For
example, if a water temporarily ceases to have standing or continuously
flowing water for 30 consecutive days during a dry spell every June, it
would meet the definition of ``relatively permanent'' under this
supplemental option. Similarly, a perennial water under ordinary
conditions would remain jurisdictional during a drought lasting no more
than five years that disrupts its otherwise perennial flow and results
in a temporary cessation of flow during an abnormally dry summer.
Because this temporary interpretation in flow is due to an anomalous
event, the duration of flow is not limited. Meanwhile, under this
approach a water that lacks standing or continuously flowing water from
June through August (approximately 90 days) every year, i.e., under
ordinary conditions, would not be relatively permanent. The agencies
seek comment on whether this supplemental regulatory approach could
lead to greater transparency and clarity in implementation while
remaining consistent with the Rapanos plurality and Sackett decisions.
The NPRM contained a number of implementation tools and methods
that can be used for ``relatively permanent'' determinations, and the
agencies believe that they can also be used to implement this
supplemental option to the definition of ``relatively permanent.'' The
agencies refer to that portion of the NRPM and thus will not be
restating every tool and method in this section. See 90 FR 52523-24
(November 20, 2025). The agencies will continue to use multiple tools,
including remote and field-based indicators to inform decisions.
The agencies also solicit comment on tools that can be used to
determine if drought conditions are occurring that may result in a
temporary interruption in standing or continuously flowing water that
is perennial under normal conditions. As discussed previously, the
agencies would interpret drought to extend continuously across no more
than a five-year timeframe, after which the drought condition would be
nullified for purposes of identifying ``relatively permanent'' waters.
After five years, such conditions would be considered the new normal.
The agencies could use precipitation-driven tools like the U.S. Drought
Monitor,\7\ which relies on NOAA's Standardized Precipitation Index \8\
computed for timescales ranging from 1 to 72 months and features an
updated map released every Thursday that shows the location and
severity of precipitation deficits across the United States and U.S.
Territories, and is developed in partnership with several U.S.
government agencies.\9\ This collaborative effort has produced a weekly
assessment of drought conditions since 1999, and also includes
categorization of ``short-term drought'' impacts (less than six months)
and ``long-term drought'' impacts (six months or more). The U.S.
Drought Monitor uses four levels of drought: moderate (D1), severe
(D2), extreme (D3) and exceptional (D4).\10\ The agencies are
considering implementing drought under this supplemental option such
that only extreme (D3) and exceptional (D4) droughts would qualify as
anomalous drought conditions that can temporarily interrupt perennial
flow. The agencies solicit comment on this implementation approach to
drought.
---------------------------------------------------------------------------
\7\ The U.S. Drought Monitor is a produced through a partnership
between the National Drought Mitigation Center at the University of
Nebraska-Lincoln, the U.S. Department of Agriculture, the National
Oceanic and Atmospheric Administration, and the National Aeronautics
and Space Administration. Available at <a href="https://www.drought.gov/data-maps-tools/us-drought-monitor">https://www.drought.gov/data-maps-tools/us-drought-monitor</a>.
\8\ See <a href="https://www.ncei.noaa.gov/access/monitoring/nadm/indices/spi/div">https://www.ncei.noaa.gov/access/monitoring/nadm/indices/spi/div</a>.
\9\ See <a href="https://droughtmonitor.unl.edu/CurrentMap.aspx">https://droughtmonitor.unl.edu/CurrentMap.aspx</a>.
\10\ See <a href="https://droughtmonitor.unl.edu/About/WhatistheUSDM.aspx">https://droughtmonitor.unl.edu/About/WhatistheUSDM.aspx</a>.
---------------------------------------------------------------------------
The agencies also have routinely used the Corps' Antecedent
Precipitation Tool (APT) \11\ to assess if observations made during a
site visit or through interpretation of aerial photography are made
under normal, wetter than normal, or drier than normal climatic
conditions for a given location. For example, the WebWIMP \12\ outputs
reported by APT can be used to assess the presence of drought
conditions. The APT also displays monthly values from NOAA's Climate
Division Scale Palmer Drought Severity Index (PDSI) \13\ dataset. The
PDSI integrates precipitation, evapotranspiration, and soil moisture
data into the monthly drought index. The PDSI Divisional Time Series
may be used to observe PDSI across States and ecoregion divisions on a
monthly scale from a start year of 1895 to 2026.\14\
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\11\ Available at <a href="https://github.com/erdc/Antecedent-Precipitation-Tool/releases">https://github.com/erdc/Antecedent-Precipitation-Tool/releases</a>.
\12\ The Web-based Water-Budget Interactive Modeling Program
(WebWIMP) is a water-budget model that uses interpolated average
monthly air temperature and precipitation data to calculate a
climatically-averaged, monthly water-balance for a given location.
Available at <a href="http://cyclops.deos.udel.edu/wimp/public_html/index.html">http://cyclops.deos.udel.edu/wimp/public_html/index.html</a>). See also ``Additional Information on the Antecedent
Precipitation Tool,'' available at <a href="https://www.epa.gov/system/files/documents/2022-12/Additional%20Information%20on%20the%20APT.pdf">https://www.epa.gov/system/files/documents/2022-12/Additional%20Information%20on%20the%20APT.pdf</a>.
\13\ See <a href="https://www.ncei.noaa.gov/access/monitoring/climate-at-a-glance/divisional/mapping/110/pdsi/202607/1/value">https://www.ncei.noaa.gov/access/monitoring/climate-at-a-glance/divisional/mapping/110/pdsi/202607/1/value</a>.
\14\ Available at <a href="https://www.ncei.noaa.gov/access/monitoring/climate-at-a-glance/divisional/time-series">https://www.ncei.noaa.gov/access/monitoring/climate-at-a-glance/divisional/time-series</a>.
---------------------------------------------------------------------------
The agencies also solicit comment on tools that could be used to
determine if a dry spell is occurring that may result in a temporary
interruption in standing or continuously flowing water. The APT and
associated metrics could also be used to help determine if a dry spell
is occurring. One of the classifications in the U.S. Drought Monitor is
``normal conditions'' \15\ and could potentially be used to help
determine if a non-anomalous dry spell is occurring, as such dry
weather should be classified as normal conditions. Under a dry spell,
dry weather would be the normal climatic condition for a set time of
the year at a given location. However, a temporary interruption in
standing or continuously flowing water due to a dry spell could only
last for no more than a single period of up to 30 consecutive days in
any given year under this supplemental option for a water to be
considered ``perennial'' and thus ``relatively permanent.''
---------------------------------------------------------------------------
\15\ See supra note 10.
---------------------------------------------------------------------------
Similarly, the agencies solicit comment on tools that can be used
to determine if low tides are occurring that may result in a temporary
interruption in standing or continuously flowing water. For example,
NOAA provides the official tidal predictions for the nation and
maintains a website called ``Tides and Currents'' \16\ that can be used
to access local tidal conditions to help determine if a water
temporarily lacks flowing or standing water because of low tides. The
website allows users to generate past, present, and future tide
predictions at over 3,000 locations along the coastal United States.
Because tides are caused by the gravitational pull of the moon and the
sun, they appear as the regular rise and fall of the sea surface and
can be predicted with strong confidence; however, certain extraordinary
weather events like hurricanes or sustained directional winds can
exacerbate low tides beyond seasonal expectations. However, even under
such circumstances, the low tides would not impede a determination that
[[Page 57292]]
a water is relatively permanent under this supplemental proposal.
---------------------------------------------------------------------------
\16\ See <a href="https://tidesandcurrents.noaa.gov/">https://tidesandcurrents.noaa.gov/</a>.
---------------------------------------------------------------------------
The agencies do not believe that this supplemental option would
require continuous monitoring. The agencies have extensive experience
with assessing flow duration, regardless of the threshold, under all
regulatory regimes since Rapanos, such as at least seasonal flow (e.g.,
90 days) under the pre-2015 regulatory regime, perennial and
intermittent flow under the 2020 Navigable Waters Protection Rule, and
continuous flow during certain times of the year but more than for a
short duration in direct response to precipitation under the Amended
2023 Rule. See Navigable Waters Protection Rule: Definition of ``Waters
of the United States,'' 85 FR 22250 (April 21, 2020); Revised
Definition of ``Waters of the United States,'' 88 FR 3004 (January 18,
2023) (as amended by Revised Definition of ``Waters of the United
States''; Conforming, 88 FR 61964 (September 8, 2023)). These
regulatory regimes have all required an element of continuous flow for
a duration, and the agencies have not required continuous monitoring
under any of these prior or current approaches. The agencies seek
comment on implementation of this supplemental option, including tools
and methods that could be used.
b. Potential Reliance Interests
The Supreme Court recognizes that an agency must ``provide a more
detailed justification that would suffice for a new policy . . . when .
. . its prior policy has engendered serious reliance interest that must
be taken into account.'' FCC v. Fox Television Stations, Inc., 556 U.S.
502, 515 (2009). However, the agencies understand that reliance
interests alone cannot justify retaining a regulation that is in
conflict with the Supreme Court's ruling in Sackett. Despite this, the
agencies have agreed to review and consider certain reliance interests
raised by stakeholders in the interest of transparency and public
engagement, and how the agencies may consider those interests in light
of Sackett. This discussion is not and should not be understood as a
concession that such consideration is legally required. The agencies
believe this supplemental option would have certain practical impacts
but that its rationale would be sufficient to justify those impacts. As
discussed above, interpreting the scope of a continuous surface
connection to be a continuous surface water connection, except in the
case of a dry spell, low tide, or drought, could be read as the most
consistent interpretation of the Sackett decision. Specifically, it
would potentially reflect the language in Sackett interpreting a
continuous surface connection to encompass wetlands where it is
``difficult to determine where the `water' ends and the `wetland'
begins,'' albeit acknowledging that ``temporary interruptions in
surface connection may sometimes occur because of phenomena like low
tides or dry spells.'' Sackett, 598 U.S. at 678. The agencies are
proposing this supplemental option to conform the regulatory definition
of ``waters of the United States'' with the text of the Clean Water Act
and Sackett, and they may not utilize reliance interests as a way to
skirt Sackett's ruling.
The agencies received comments on the NPRM indicating that States
were both prepared and well-equipped to regulate non-jurisdictional
waters within their boundaries. Commenters likewise pointed to
instances in several State constitutions that preserve this power, as
well as the provision of certain State legislative grants of authority
for specific jurisdictional waters within State boundaries.
Alternatively, the agencies recognize that some States and Tribes may
need to expend considerable resources to effectuate a State or Tribal
program to regulate these non-jurisdictional waters and that other
States currently have laws restricting their ability to be more
stringent than Federal regulations. The agencies further note that the
definition of ``waters of the United States'' has been in significant
flux: the past eleven years have included five rule revisions, a major
Supreme Court decision, a memorandum to the field, and a constant
stream of lower court rulings, injunctions and vacaturs--each modifying
the agencies' interpretation of ``waters of the United States.'' The
agencies seek to now put an end to such uncertainty, but in the
meantime States and Tribes may have had difficulty relying on a
consistent prior interpretation of ``waters of the United States.''
Regardless, the agencies seek comment on any reliance interests
that may be affected by this supplemental option and how the agencies
may consider those interests while still adhering to the text of the
Clean Water Act and Sackett decision.
C. ``Continuous Surface Connection'' Waters
1. Summary of Initial Proposed Definition and Relevant Comments
Received on ``Continuous Surface Connection''
In Sackett, the Supreme Court interpreted the jurisdictional extent
of ``navigable waters'' under the Clean Water Act. Part III.B of the
Court's opinion sets out the test for determining when wetlands are
``waters.'' In Part III.B, the Court held that wetlands are
jurisdictional when they are `` `as a practical matter
indistinguishable from waters of the United States.' '' 598 U.S. at 678
(quoting Rapanos, 547 U.S. at 742 (plurality op.)). Wetlands are
``indistinguishable'' when (1) `` `the adjacent [body of water
constitutes]. . . ``water[s] of the United States'' ' '' and (2) ``
`the wetland has a continuous surface connection with that water,
making it difficult to determine where the `water' ends and the
`wetland' begins.' '' Id. at 678-79 (quoting Rapanos, 547 U.S. at 742,
755).
The agencies previously proposed to define ``continuous surface
connection'' to mean having surface water at least during the wet
season and abutting (i.e., touching) a jurisdictional water. Under the
NPRM, ``wet season'' for continuous surface connection was intended to
be implemented as it was for the proposed definition of ``relatively
permanent.'' The agencies sought comment on the proposed definition,
implementation, and several alternative approaches to continuous
surface connection.
Some commenters generally supported the applicability of the ``wet
season'' concept to defining jurisdictional adjacent wetlands. The
agencies also received a number of comments expressing concern about
the proposed wet season approach, with some commenters disagreeing with
the proposed approach. As a legal matter, many commenters argued that
nothing in the Clean Water Act, Sackett, or in the Rapanos plurality
sets forth a ``wet season'' threshold for adjacency. As a practical
matter, some commenters expressed concern that the ``wet season''
requirement did not account for the lag time between when precipitation
occurs and when wetlands are inundated. Therefore, these commenters
pointed out that a season-based threshold should take into account
inundation in wetlands that occurs as a result of the wet season, even
if not during the wet season. The agencies also received comment that
it is unclear how the use of National Wetlands Inventory (NWI) water
regime modifiers for assessing surface inundation ``at least during the
wet season'' will be applied when implementing the ``wet season''
concept in the definition of ``relatively permanent waters'' as
proposed.
Other commenters supported the proposed approach to continuous
surface connection, stating that it would both set bright lines while
allowing for flexibility based on region. Many
[[Page 57293]]
commenters expressed support for the definition of ``continuous surface
connection,'' as proposed, stating that it aligns with, and is even
required by, the ordinary meaning of ``adjacent'' and satisfies the
test in Sackett, derived from the Rapanos plurality. Specifically,
these commenters stated that the proposed definition satisfies the
requirement in Sackett requiring adjacent water features to be ``as a
practical matter indistinguishable'' from ``waters of the United
States,'' citing Sackett, 598 U.S. at 678, and the Sackett decision's
directive that the agencies must not regulate waters ``that are
separate from traditional navigable waters . . . even if they are
located nearby.'' Sackett, 598 U.S. at 676.
Some commenters disagreed with the proposed definition of
``continuous surface connection'' on the grounds that
``indistinguishable'' must be an independent part of the adjacency
test. Commenters emphasized that two features may have a continuous
surface connection while still being distinguishable. In their view,
indistinguishability is not merely an outcome of a continuous surface
connection but is an express qualification upon that test. These
commenters cited lower court holdings as confirming the centrality of
Sackett's indistinguishability requirement. See, e.g., United States v.
Sharfi, No. 2:21-cv-14205, 2024 WL 4483354, at *13 (S.D. Fla. Sep. 21,
2024), report and recommendation adopted, 2024 WL 5244351 (S.D. Fla.
Dec. 30, 2024) (finding that the government's interpretation ignored
the requirement that the continuous surface connection be one which
``makes it difficult to determine where the `water' ends and the
`wetland' begins'' (quoting Sackett, 598 U.S. at 678-79)); United
States v. Ace Black Ranches, LLP, No. 1:24-cv-00113, 2024 WL 4008545,
at *3 (D. Idaho Aug. 29, 2024) (finding that the government failed to
``successfully allege[ ] that Ace Black Ranches discharged pollutants
into wetlands that are indistinguishable from, and have a continuous
connection with, the River, satisfying the adjacency test'' (emphasis
added)).
Some commenters cited the White v. U.S. EPA decision as
interpreting Sackett to mean that the continuous surface connection
test implements the concept of indistinguishability. White v. U.S.
Env't Prot. Agency, 737 F. Supp. 3d 310 (E.D.N.C. 2024). In White, the
court cites Sackett's statement that the Clean Water Act ``extends to
only those `wetlands with a continuous surface connection to bodies
that are ``waters of the United States'' in their own right,' so that
they are `indistinguishable' from those waters,'' Sackett, 598 U.S. at
684, and concludes: ``the use of `so' as a conjunction says it all.''
Id. at 327 (citing So, American Heritage Dictionary 1660 (5th ed. 2011)
(meaning ``[f]or that reason; therefore''); so, Merriam-Webster's
Collegiate Dictionary 1182 (11th ed. 2003) (meaning ``with the result
that'' or ``for that reason'')). According to the commenters, the White
court's interpretation of Sackett is consistent with the Rapanos test's
formulation: `` `waters' may fairly be read to include only those
wetlands that are as a practical matter indistinguishable from waters
of the United States,'' which ``occurs when wetlands have a continuous
surface connection to bodies that are waters of the United States in
their own right, so that there is no clear demarcation between waters
and wetlands.'' Sackett, 598 U.S. at 678 (quoting Rapanos, 547 U.S. at
742, 755) (internal citation and quotation marks omitted). In other
words, according to the commenters, the phrasing in both the Rapanos
plurality and Sackett indicates that the consequence of a ``continuous
surface connection'' with a covered water is indistinguishability with
that water. See White, 737 F. Supp. 3d at 326-27.
Commenters further cite the White court as pointing out that no
lower court has read Sackett to mandate that a wetland have both a
continuous surface connection to a jurisdictional water and be
practically indistinguishable in order to be ``adjacent.'' The White
court noted that in Lewis v. United States, the Fifth Circuit
acknowledged that Sackett requires the wetland be indistinguishable
from a water of the United States to be jurisdictional and then
recognized that a continuous surface connection to a jurisdictional
water ``represents the Sackett `adjacency test.' '' White, 737 F. Supp.
3d at 327 (citing Lewis v. United States, 88 F.4th 1073, 1078 (5th Cir.
2023)). Similarly, the White court noted that in Glynn Environmental
Coal, Inc. v. Sea Island Acquisition, LLC, the United States District
Court for the Southern District of Georgia acknowledged that a wetland
must be ``practically indistinguishable'' and then held that the
property did not meet that definition because it lacked a continuous
surface connection. Id. (citing 2024 U.S. Dist. LEXIS 45704, at *11-16
(S.D. Ga. Mar. 1, 2024)).
Some commenters argued that, while the agencies stated in the
proposed rule that they were not changing the longstanding definition
of ``wetlands,'' the definition of ``continuous surface connection''
effectively renders that provision inoperative. According to those
commenters, the agencies are making significant changes to the meaning
of ``wetlands'' without providing the public with notice and an
opportunity for comment.
The agencies also received comments stating that to the extent
seasonality generally is relevant to the scope of Clean Water Act
jurisdiction, it is limited to the scope of ``relatively permanent
waters,'' not adjacent wetlands. Some commenters also asserted that, as
a general matter, the ``wet season'' concept is broader than the
standard that Sackett laid out.
The agencies requested comment on an alternative that would require
a jurisdictional wetland to have a continuous surface water connection
to an otherwise jurisdictional water, requiring the perennial presence
of surface water (i.e., year-round) in the wetland, lake, or pond, for
example, in a permanently flooded wetland. Some commenters supported
this alternative, stating that this approach best implements the
``indistinguishable'' standard articulated in Sackett, see 598 U.S. at
678, and is consistent with the text of the Act and the Supreme Court's
decision in United States v. Riverside Bayview Homes, 474 U.S. 121
(1985). They emphasized that this approach would be consistent with the
way some courts have interpreted the Rapanos plurality and Sackett,
which is that `` `continuous surface connection' means a surface water
connection,'' citing United States v. Sharfi, No. 21-14205, 2024 WL
5244351, at *3 (S.D. Fla. Dec. 30, 2024); and United States v. Ace
Black Ranches, LLP, No. 1:24-cv-00113, 2024 WL 4008545, at *10 n.2 (D.
Idaho Aug. 29, 2024) (dismissing the government's complaint for failure
to ``connect any wetlands'' it alleged to be ``waters of the United
States'' with a traditional navigable water ``via a sufficient surface-
water connection''). In addition, they stated that nothing in Sackett,
Rapanos, or Riverside Bayview mentions a wet season in the context of
its discussions of indistinguishability.
Other commenters did not agree with this proposed alternative,
emphasizing that in their view Sackett does not require a ``continuous
surface water connection,'' only a physical continuous surface
connection. Some of those commenters noted that in the Rapanos
plurality opinion, Justice Scalia twice suggests that the ``continuous
surface connection'' requirement contemplated a ``physical connection''
rather than solely a hydrological one, citing Rapanos, 547 U.S. at 737,
747. One commenter pointed out that a ``continuous surface water
connection'' requirement would cover only a small
[[Page 57294]]
fraction of non-tidal wetlands. The commenter argued that Congress did
not undertake the significant effort to modify the Clean Water Act in
1977 in order to provide States with authority to assume administration
of the 404 program under section 404(g) for a subset of ``waters of the
United States,'' explicitly citing adjacent wetlands in the text, to
address what they deemed to be a de minimis fraction of non-tidal
wetlands.
In the NPRM, the agencies also requested comment on whether
``continuous surface connection'' is best interpreted to mean simply
abutting, i.e., touching, consistent with the approach under the March
2025 Continuous Surface Connection Guidance. See 90 FR 52530 (November
20, 2025). This alternative approach would categorically cover all
wetlands that abut a jurisdictional water, under paragraph (a)(4) of
the rule, regardless of whether they are characterized by surface water
at least seasonally. Some commenters stated that none of the Supreme
Court decisions addressing ``waters of the United States,'' from
Riverside Bayview through Sackett, demanded that a wetland be
continuously filled with water, during a wet season or otherwise, in
order to be deemed jurisdictional. Rather, the commenters stated, the
Supreme Court has consistently recognized that wetlands abutting, or
touching, otherwise covered waters are covered under the Clean Water
Act. They noted that the Sackett decision favorably cited Riverside
Bayview's holding that wetlands ``actually abutting a navigable
waterway'' are jurisdictional, as it affirmed that ``waters of the
United States'' include wetlands ``contiguous'' to navigable waters.
The agencies also solicited comment on an alternative approach to
define ``continuous surface connection'' to be consistent with the
NWI's semipermanently flooded water regime and require surface water at
least during the growing season. Under such an alternative approach,
the agencies solicited comment on whether growing season should be
implemented consistent with EPA and the Corps' wetland delineation
practices. A few commenters supported the agencies' proposed use of NWI
water regime modifiers for assessing surface inundation when assessing
if a wetland has a continuous surface connection. One such commenter
recommended the agencies use the NWI water regime categories of
``semipermanently flooded'' and ``permanently flooded'' to be more
procedurally succinct when assessing continuous surface connection
rather than expending effort to define ``wet season.'' Another
commenter asserted that any wetlands classified with water regime
modifiers of ``permanently flooded,'' ``intermittently exposed,''
``semipermanently flooded,'' or ``seasonally flooded'' could be
determined to satisfy continuous surface connection, so long as they
are also abutting a covered water.
A few commenters opposed the adjusted calculation of ``wet season''
rather than the original ``growing season'' variable modeled in NWI
water regime modifiers. These commenters highlighted that ``growing
season'' is dependent on temperature and budding vegetation while ``wet
season'' is precipitation and evapotranspiration driven and asserted
the use of NWI modifiers is inapplicable for assessing surface
inundation ``at least during the wet season.'' Another of these
commenters opposed the use of the ``semipermanently flooded'' water
regime and asserted that this regime is defined as ``having surface
water for most of the growing season'' and stated this duration ``goes
well beyond the proposed wet season'' period.
2. Supplemental Option for the Definition of ``Continuous Surface
Connection''
Unlike in the NPRM, which proposed to define continuous surface
connection as ``having surface water at least during the wet season and
abutting (i.e., touching) a jurisdictional water,'' the agencies are
requesting comment in this supplemental notice on an alternative
definition of ``continuous surface connection.'' In this supplemental
notice, the agencies are requesting comment on an alternative
definition of ``continuous surface connection'' as meaning ``perennial
surface water in a wetland that is continuously connected with the
surface water in the jurisdictional water such that it is difficult to
determine where the jurisdictional water ends and the wetland begins. A
temporary interruption in the surface water connection may occur as the
result of anomalous events such as drought or a dry spell. A temporary
interruption in the surface water connection lasting for no more than a
single period of up to 30 consecutive days in any given year may also
occur as a result of non-anomalous events such as low tide or a
regularly occurring dry spell.'' Only the portion of the wetland that
is indistinguishably part of the jurisdictional water would be itself
jurisdictional. This supplemental option would also respond to comments
expressing concerns about the ``wet season'' approach (i.e., the period
of time when precipitation exceeds evaporation) and address the
concerns of commenters that requiring flow inundation during the ``wet
season'' would not account for climates where streamflow wetland
hydrology is temporally offset from the wet season.\17\ The agencies
seek comment on whether any other numeric threshold may be more
consistent with Sackett and the Rapanos plurality.
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\17\ As discussed in the NPRM, surface hydrology may not always
exactly overlap with the wet season, for example in regions
exhibiting a time lag or delay in demonstration of surface hydrology
due to various factors. The latter may occur, for example, as a
result of snowpack melt occurring several months after repeated
snowfall creates a snowpack. In another example, some streams
experience delayed (i.e., lagged) surface hydrology during the
transition from the dry season to the wet season, as it may take
some time for the water table to rise due to seasonal precipitation
patterns. 90 FR 52518 (November 20, 2025).
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Under this supplemental option, the agencies' proposed definition
of ``continuous surface connection'' utilizes the term ``perennial''
for the sake of consistency with the supplemental proposed definition
of ``relatively permanent.'' As discussed in section V.B.2 of this
preamble, this supplemental option would define ``perennial'' as
``having standing or continuously flowing water every day of the year
during ordinary conditions.'' Consistent with the jurisdictional test
advanced by the Sackett majority, this supplemental option focuses on
wetlands with perennial surface water that are connected to the surface
water in the jurisdictional water with limited exceptions due to either
anomalous events or a non-anomalous temporary interruption. These
anomalous and non-anomalous events are the types of circumstances
identified in Sackett and the Rapanos plurality: low tides, dry spells,
and drought.
Although the phrase ``extraordinary circumstances, such as
drought'' in the Rapanos plurality opinion, 547 U.S. at 796, n.5,
refers to relatively permanent waters, this type of anomalous event
does not prevent a wetland from having a continuous surface connection
if it would otherwise satisfy the supplemental proposed definition.
This is because it would make no sense for an extraordinary departure
from the wetland's ordinary condition due to a natural and
uncontrollable weather event to remove the jurisdictional status from
an otherwise adjacent wetland. The agencies would implement drought as
described above in the supplemental option for ``relatively
permanent,'' including considering a drought lasting continuously for
more than five years as
[[Page 57295]]
the new normal conditions. Under this approach, if a drought lasts for
more than five years, wetlands that have previously been considered to
have had a continuous surface connection despite temporary
interruptions resulting from drought would no longer be jurisdictional.
Consistent with Sackett under this supplemental option, a temporary
interruption in surface water connection that may occur because of non-
anomalous phenomena like low tide or a regularly occurring dry spell
would not break jurisdiction. See Sackett, 598 U.S. at 678. The
supplemental option, if finalized, would clarify in the regulatory text
that a temporary interruption in flow due to such non-anomalous events
cannot occur for more than a single period of up to 30 consecutive days
in any given year. The agencies would implement low tides and regularly
occurring dry spells as described above in the supplemental option for
``relatively permanent.'' The agencies are also seeking comment on an
additional alternative approach whereby Sackett's concept of
``indistinguishability'' would remove the applicability and, therefore,
the relevance of the terms ``adjacent'' and ``abutting.'' The agencies
would follow the Sackett Court's directive that interpreting 33 U.S.C.
1344(g)(1), such that ``adjacent wetlands . . . are `includ[ed]' within
`the waters of the United States,'. . . [and therefore] [adjacent
wetlands] must qualify as `waters of the United States' in their own
right.'' 598 U.S. at 676. Under this alternative approach, the Sackett
Court would be viewed as not considering ``adjacency'' as a separate
concept requiring its own independent analysis, but rather incorporated
into the broader concept of ``the waters of the United States'' such
that ``certain `adjacent' wetlands are part of `waters of the United
States.' '' Id. at 677 (emphasis in original).
As such, the agencies are also soliciting supplemental comments on
whether the terms ``adjacent'' or ``abutting'' are operative in the
definition of ``continuous surface connection,'' or should be removed
from the definition entirely. Under such an interpretation of Sackett,
the agencies would delete the term ``adjacent'' from the definition in
paragraph (c)(2) and revise paragraph (a)(4) of their regulations to
read: ``Wetlands that are indistinguishably part of a body of water
that itself is jurisdictional under (a)(1) through (3) of this section.
This occurs when surface water in a wetland is continuously connected
with the surface water in the jurisdictional water such that it is
difficult to determine where the jurisdictional water ends and the
wetland begins. Only the portion of the wetland that is
indistinguishably part of the jurisdictional water, due to the presence
of surface water, is itself jurisdictional. The requisite surface water
connection is not broken by a temporary interruption in surface
connection that may sometimes occur because of phenomena like low tide
or a regularly occurring dry spell.''
Sackett held that ``the CWA extends to only those wetlands that are
`as a practical matter indistinguishable from waters of the United
States.' '' Id. at 678. The Court stated that this test ``requires the
party asserting jurisdiction over adjacent wetlands to establish
`first, that the adjacent [body of water constitutes] . . . ``water[s]
of the United States,'' (i.e., a relatively permanent body of water
connected to traditional interstate navigable waters); and second, that
the wetland has a continuous surface connection with that water, making
it difficult to determine where the ``water'' ends and the ``wetland''
begins.' '' Id. at 678-79. The Sackett decision recognized that
temporary interruptions in surface connection may occur, such as during
dry spells or low tide. Id. at 678. See also Rapanos, 547 U.S. at 796
n. 5 (``By describing `waters' as `relatively permanent,' we do not
necessarily exclude streams, rivers, or lakes that might dry up in
extraordinary circumstances, such as drought.'') (Scalia, J., plurality
opinion.)
While the agencies acknowledge commenters have argued and lower
courts have held that a surface water connection is not required under
Sackett, this supplemental option to ``continuous surface connection''
relies on a reading of Sackett whereby a wetland can be
indistinguishably part of a jurisdictional water only when the wetland
and the jurisdictional water share a surface water connection. Under
this option, where that continuous surface water connection runs out,
the wetland and the water become distinguishable and Federal
jurisdiction ends. As Justice Scalia observed in Rapanos, ``[t]he plain
language of the statute simply does not authorize [a] `Land Is Waters'
approach to federal jurisdiction.'' 547 U.S. at 734; see also Sackett,
598 U.S. at 672 (``This meaning is hard to reconcile with classifying
`lands,' wet or otherwise, as `waters.' ''). Rather, to be
jurisdictional, ``wetlands must qualify as `waters of the United
States' in their own right,'' which means ``they must be
indistinguishably part of a body of water that itself constitutes
`waters' under the CWA.'' Sackett, 598 U.S. at 676 (emphasis added).
This proposed interpretation--that the only type of continuous
surface connection that could make ``it difficult to determine where
the `water' ends and the `wetland' begins'' is a continuous surface
water connection--comports with the text of the Clean Water Act,
Sackett's interpretation of that text, and the overarching presumptions
Sackett sets out. Under this reading of Sackett, it follows then that
if mere abutment between a wetland and a water was sufficient, it would
not be difficult to draw the line between the water and the wetland,
and Sackett would not be satisfied--particularly given the requirement
that ``EPA must provide clear evidence that it is authorized to
regulate in the manner it proposes.'' 598 U.S. at 679. This
supplemental option would thus implement Sackett's clear instruction
that ``wetlands that are not indistinguishably part of otherwise
covered'' ``waters of the United States'' are not jurisdictional. Id.
at 667.
As noted above, the agencies are seeking comment on several
supplemental regulatory options defining ``continuous surface
connection'' that would require continuous surface water except as a
result of a temporary interruption such as a regularly occurring dry
spell or low tide or anomalous events such as drought or dry spell. The
agencies would implement these terms in the context of ``continuous
surface connection'' in the same manner as discussed above in this
SNPRM in conjunction with the supplemental option for the definition of
``relatively permanent.'' This approach would be in keeping with the
Sackett decision, which stated that ``temporary interruptions in
surface connection may sometimes occur because of phenomena like low
tides or dry spells.'' 598 U.S. at 678; see also Rapanos, 547 U.S. at
796 n. 5 (``By describing `waters' as `relatively permanent,' we do not
necessarily exclude streams, rivers, or lakes that might dry up in
extraordinary circumstances, such as drought.'') (Scalia, J., plurality
opinion.). The agencies also solicit comment on the definition of
perennial or other alternative definitions to the term in the context
of ``continuous surface connection.''
This supplemental option for the proposed definition of
``continuous surface connection'' seeks to introduce greater clarity
than the initial proposed definition would have provided. The agencies
seek comment on this supplemental option to the proposed definition of
``continuous surface connection,'' which was based on public comments.
[[Page 57296]]
a. Implementation
The agencies assert that this supplemental option to defining
``continuous surface connection'' could further simplify implementation
of the rule. If members of the public see that a wetland does not share
a continuous surface water connection with a jurisdictional water
(i.e., the perennial surface water in the wetland is continuously
connected to the surface water in the jurisdictional water), except for
during a temporary interruption due to low tide or a regularly
occurring dry spell or as the result of anomalous events such as
drought or dry spell, they would know that wetland would not be
jurisdictional under this supplemental option simply by observation,
without the need for any further analysis or professional consultation.
Furthermore, while any standard will present line drawing issues, the
agencies believe that under this supplemental option it will be
relatively simple for landowners to understand whether a portion of a
wetland is continuously covered by perennial surface water that is
connected with surface water in a jurisdictional water. Such a
determination can be made by the naked eye. Additionally, a temporary
interruption like a regularly occurring dry spell and low tide are
readily observable phenomena that do not require expert consultants to
determine. Similarly, drought information is readily available. The
agencies seek comment on whether this supplemental option could lead to
greater transparency and clarity in implementation while remaining
consistent with Supreme Court precedent.
As highlighted under section V.C.3.a, the NPRM contained a number
of implementation tools and methods that can be used for ``continuous
surface connection'' determinations, and the agencies believe that they
can also be used to implement this supplemental option to the
definition of ``continuous surface connection.'' \18\ The agencies
refer to that portion of the NRPM, and thus will not restate every tool
and method in this section. See 90 FR 52523 and 52524 (November 20,
2025). The agencies also refer to section V.B.2.a of this preamble for
a discussion of tools that can be used for determining drought, low
tides, and dry spells and solicit comment on the appropriateness of
these tools for implementation of the supplemental option for
``continuous surface connection.'' The agencies will continue to use
multiple tools, including remote and field-based indicators, to inform
decisions.
---------------------------------------------------------------------------
\18\ See also ``Memorandum to the Field between the U.S.
Department of the Army, U.S. Army Corps of Engineers and the U.S.
Environmental Protection Agency Concerning the Proper Implementation
of `Continuous Surface Connection' under the Definition of `Waters
of the United States' under the Clean Water Act.'' (March 12, 2025),
available at <a href="https://www.epa.gov/system/files/documents/2025-03/">https://www.epa.gov/system/files/documents/2025-03/</a>.
---------------------------------------------------------------------------
Similarly, the agencies do not believe that this supplemental
option would require continuous monitoring. The agencies seek comment
on implementation of this supplemental option, including tools and
methods that could be used.
b. Potential Reliance Interests
The Supreme Court recognizes that an agency must ``provide a more
detailed justification that would suffice for a new policy . . . when .
. . its prior policy has engendered serious reliance interest that must
be taken into account.'' FCC, 556 U.S. at 515. However, the agencies
understand that reliance interests alone cannot justify retaining a
regulation that is in conflict with the Supreme Court's ruling in
Sackett. Despite this, the agencies have agreed to review and consider
certain reliance interests raised by stakeholders in the interest of
transparency and public engagement, and how the agencies may consider
those interests in light of Sackett. This discussion is not and should
not be understood as a concession that such consideration is legally
required.
The agencies believe this supplemental option would have certain
practical impacts but that it would be sufficient to justify those
impacts. As discussed above, interpreting the scope of a continuous
surface connection to require perennial surface water in a wetland to
be continuously connected with the surface water in the jurisdictional
water, except in the case of a dry spell, low tide, or drought, could
be read as the most consistent interpretation of the Sackett decision.
Specifically, it would potentially reflect the language in Sackett
interpreting a continuous surface connection to encompass wetlands
where it is ``difficult to determine where the `water' ends and the
`wetland' begins,'' albeit acknowledging that ``temporary interruptions
in surface connection may sometimes occur because of phenomena like low
tides or dry spells.'' Sackett, 598 U.S. at 678. The agencies are
proposing this supplemental option to conform the regulatory definition
of ``waters of the United States'' with the text of the Clean Water Act
and Sackett, and they may not utilize reliance interests as a way to
skirt Sackett's ruling.
The agencies received comment on the NPRM indicating that States
were both prepared and well-equipped to regulate non-jurisdictional
waters within their boundaries. Commenters likewise pointed to
instances in several State constitutions that preserve this power, as
well as the provision of certain State legislative grants of authority
for specific jurisdictional waters within State boundaries.
Alternatively, the agencies recognize that some States and Tribes may
need to expend considerable resources to effectuate a State or Tribal
program to regulate these non-jurisdictional waters and that other
States currently have laws restricting their ability to be more
stringent than Federal regulations. The agencies further note that the
definition of ``waters of the United States'' has been in significant
flux: the past eleven years have included five rule revisions, a major
Supreme Court decision, a memorandum to the field, and a constant
stream of lower court rulings, injunctions and vacaturs--each modifying
the agencies' interpretation of ``waters of the United States.'' The
agencies seek to now put an end to such uncertainty, but in the
meantime States and Tribes may have had difficulty relying on a
consistent prior interpretation of ``waters of the United States.''
Regardless, the agencies seek comment on any reliance interests that
may be affected by this supplemental option and how the agencies may
consider those interests while still adhering to the text of the Clean
Water Act and Sackett decision.
VI. Supporting Information
A. Economic Analysis
The Regulatory Impact Analysis (RIA) for the proposed rule (U.S.
Environmental Protection Agency and U.S. Department of the Army, 2025,
Docket Document ID No. EPA-HQ-OW-0120) continues to be part of the
agencies' economic analysis after this notice. Just as the options
added in this SNPRM are supplementary to the proposed rule, the
economic analysis conducted here of the supplemental options is
supplementary to the economic analysis for the proposed rule. Thus,
although this supplemental notice only addresses the supplemental
options and analyses thereof, the totality of the analysis of the
proposal and supplemental options consists of the proposal economic
analysis and this supplemental analysis. See section 1.2 in the
Regulatory Impact Analysis for the proposed action for a description of
the current baseline and section 1.5 for
[[Page 57297]]
a summary of the economic analysis of the proposed rule.
The lack of national data sources that allow for a reliable
depiction of the baseline limits the agencies' ability to estimate the
economic impacts of the proposed action (proposed rule RIA section
1.4). This is also the case for the supplemental action. Without a
quantitative baseline, the agencies struggle to provide quantitative
estimates of potential avoided costs and forgone benefits of the
supplemental options to an appropriate degree of accuracy.
Furthermore, the agencies believe that including the economic
analysis of the supplemental options directly into the preamble will
help the public understand the economic impact of the supplemental
options. Where the economic analysis in this SNPRM relies on aspects of
the proposal economic analysis, the agencies refer to those sections,
rather than repeat them in this section.
1. ``Relatively Permanent''
The agencies are seeking comment on a supplemental option to define
``relatively permanent'' that would deem a water to be jurisdictional
if it is perennial (i.e., has standing or continuously flowing water
every day of the year during ordinary conditions). In addition, a body
of water would not lose its relatively permanent status if it dries up
as a result of certain non-anomalous or anomalous events that disrupt
standing or continuously flowing water on a temporary basis (e.g., low
tides, dry spells, or drought). Under this supplemental option,
``relatively permanent'' would be defined to mean ``perennial bodies of
water. A body of water does not lose its relatively permanent status if
it dries up as a result of anomalous events such as drought or dry
spell. A body of water also does not lose its relatively permanent
status if it dries up for no more than a single period of up to 30
consecutive days in any given year as a result of non-anomalous events
resulting in a temporary interruption such as low tide or a regularly
occurring dry spell.'' This would be a change from the current
regulatory regimes in place that do not require ``relatively
permanent'' waters to contain flowing or standing water year-round
except for certain anomalous or non-anomalous events (i.e., the
baseline). Specifically, more bodies of water would be captured as
relatively permanent under the baseline. For example, a stream would
need to be perennial, except as a result of anomalous events such as
drought or dry spell, and certain non-anomalous events such as low tide
or a regularly occurring dry spell, to be considered relatively
permanent under the supplemental proposal, whereas under the Amended
2023 Rule, streams that flow continuously during certain times of the
year would meet the relatively permanent standard, without any minimum
flow duration criteria.
The agencies anticipate that most intermittent streams would not
satisfy the requirements in the supplemental option for the proposed
definition of ``relatively permanent,'' while under the baseline, many
intermittent streams are considered to be relatively permanent. Though
the supplemental option for defining ``relatively permanent'' would
have impacts throughout the country, the agencies expect the greatest
impact would be in regions where intermittent streams drive much of the
hydrology, particularly in the arid West.
Existing national datasets provide some insight into the impact of
the options in this supplemental notice. The National Hydrography
Dataset (NHD) represents the most comprehensive national dataset of the
potential location and extent of streams, rivers, lakes, and ponds.
However, even where streams are identified in the NHD, the dataset does
not depict the scope of waters regulated under the Clean Water Act. In
addition, the definitions and implementation practices in the
supplemental option cannot be exactly represented in the NHD dataset.
Any estimates of waters in NHD would not correspond to the scope of
Clean Water Act jurisdiction under the baseline. Specifically, under
the Amended 2023 Rule, ``relatively permanent'' means having flowing or
standing water year-round or continuously during certain times of the
year but more than for a short duration in direct response to
precipitation. Under the pre-2015 regulatory regime, consistent with
the Rapanos Guidance, ``relatively permanent'' means typically having
flowing or standing water year-round or continuously at least
seasonally (e.g., typically three months). These definitions do not
equate to intermittent waters but are rather an unidentifiable portion
of the intermittent category identified in NHD. In addition, the NHD
does not accurately distinguish between intermittent and ephemeral
streams in certain parts of the country where ephemeral streams are not
mapped. In these areas, the ephemeral streams are either included as
intermittent reaches or excluded from the NHD. This creates
complications for estimating waters that would be jurisdictional under
the baseline and the impacts of the supplemental proposal. Therefore,
the agencies cannot reliably quantify the baseline for the current
regimes to assess changes in the scope of jurisdiction. Although the
NHD does not correspond to the scope of Clean Water Act jurisdiction
nor does it depict every body of water in the county, the agencies
recognize that NHD provides context to the extent of the supplemental
option. In the contiguous United States, the NHD high resolution shows
about 1.3 million miles of perennial streams and 3.5 million miles of
intermittent streams (roughly 21 percent and 55 percent of NHD-mapped
stream miles respectively).
There are similar limitations of the Corps' Operation and
Maintenance Business Information Link, Regulatory Module (ORM2)
database and current practice for discussing ``relatively permanent''
in approved jurisdictional determinations, as compared to the
supplemental option for ``relatively permanent,'' which would pose
challenges to using the ORM data for quantitative analysis.
The agencies evaluated some comments that acknowledged the
technical limitations of using datasets such as the ORM2 database,
National Hydrography Dataset (NHD), and National Wetlands Inventory
(NWI), given that these datasets could not accurately portray
jurisdictional waters under the Clean Water Act. Some commenters
recommended the agencies not rely on NHD, NWI, or any versions of these
datasets to quantify and monetize the impacts of the final rule for the
above reasons and because both datasets have errors of omission and
commission. The agencies continue to assert that the limitations of
these datasets complicate efforts to quantify the impacts of the
agencies' supplemental regulatory options at this time.
2. ``Continuous Surface Connection''
The agencies are requesting comment on an alternative approach that
would define ``continuous surface connection'' to mean ``perennial
surface water in a wetland that is continuously connected with the
surface water in the jurisdictional water such that it is thus
difficult to determine where the jurisdictional water ends and the
wetland begins. A temporary interruption in the surface water
connection may occur as the result of anomalous events such as drought
or dry spell. A temporary interruption in the surface water connection
lasting no more than a single period of up to 30 consecutive days in
any given year may also occur as a result of non-anomalous events such
as low tide or a regularly
[[Page 57298]]
occurring dry spell.'' Only the portion of the wetland that is
indistinguishably part of the jurisdictional water would be itself
jurisdictional.
The supplemental options in this notice for continuous surface
connection would result in a narrower definition of ``waters of the
United States'' compared to the baseline of the Amended 2023 Rule. One
of the biggest changes from the baseline is the requirement that
perennial surface water must be present continuously in the wetland,
except during certain temporary interruptions caused by anomalous and
non-anomalous events, for wetlands to have a ``continuous surface
connection.'' The supplemental option in the SNPRM would require an
assessment of whether a wetland has perennial surface water
continuously, which differs from current practice which does not
require adjacent wetlands to express their hydrology at the surface,
nor does it require wetlands to express their hydrology year-round. For
example, wetlands that have less than continuous surface water
connection to a jurisdictional water, except during a temporary
interruption caused by anomalous events such as drought or dry spell,
or a temporary interruption of no more than a single period of up to 30
consecutive days in any given year caused by non-anomalous events such
as low tides or regularly occurring dry spell, would not be considered
jurisdictional under this SNPRM, though such wetlands would be
jurisdictional under the baseline where they abut a jurisdictional
water. The agencies anticipate that the majority of wetlands that are
jurisdictional as adjacent wetlands under current regimes would not
satisfy the supplemental definition of ``continuous surface
connection,'' as most wetlands do not contain perennial surface
water.\19\
---------------------------------------------------------------------------
\19\ See section 3.3.1 and table 3-1 in the proposed rule RIA
(Docket ID EPA-HQ-OW-2025-0322, available at <a href="https://www.epa.gov/system/files/documents/2025-11/11132.1-01-ow_wotus_nprm_ria_20251110_508.pdf">https://www.epa.gov/system/files/documents/2025-11/11132.1-01-ow_wotus_nprm_ria_20251110_508.pdf</a>). The table depicts the total
wetland acres of the National Wetlands Inventory and the acreage of
wetlands in the NWI that may have surface water as least during the
wet season.
---------------------------------------------------------------------------
Data limitations and other factors make it challenging to estimate
the change in the scope of ``waters of the United States'' at this time
should the agencies finalize the SNPRM's option for defining
``continuous surface connection.'' The agencies acknowledge that
several spatial connectivity efforts have been conducted recently in an
effort to assist the assessment of policy options related to the degree
of connection between wetlands and ``relatively permanent'' waters for
the contiguous United States in response to Sackett, (e.g., Lane et
al., 2025; Simmons et al., 2024; Gold, 2024). Those documents have been
considered in section 3.3.1 of the proposed rule RIA and can be found
in the docket for the proposed rule (Docket ID EPA-HQ-OW-2025-0322).
However, the agencies also acknowledge that such efforts may not mirror
the statutory constraints by which EPA and the Army must comply,
consistent with the Sackett decision.
Although the agencies were unable to conduct a quantitative
analysis for the SNPRM, these publications provide a range of rough
estimates of wetland impacts that differ due to the methodology
employed in each analysis. These methodologies are likely still
insufficient or inconsistent in their capture of wetlands subject to
Federal jurisdiction under the definition of ``continuous surface
connection.'' In the proposed rule RIA, the agencies proposed a
methodology to estimate the change in Clean Water Act jurisdiction of
wetlands due to the definition of ``continuous surface connection'' for
the final rulemaking analysis, to the extent practicable. The proposed
methodology is described in more detail in section 3.3 of the proposed
rule RIA.
3. Programmatic Impacts
The agencies qualitatively analyzed the potential effects of the
supplemental regulatory options in the SNPRM and anticipate that the
potential impacts of the definitions of ``continuous surface
connection'' and ``relatively permanent'' would be significant for
Clean Water Act jurisdiction of streams and wetlands relative to the
baseline. The agencies also anticipate that the arid West in particular
will see a significant reduction in federally jurisdictional waters due
to the definition of ``continuous surface connection'' and ``relatively
permanent'' in these supplemental approaches as compared to the
baseline.
The agencies anticipate that the Clean Water Act section 404
program would likely see the most programmatic changes under the
options in the SNPRM, with projected reductions in the number of
permits and required mitigation relative to the baseline. This would
result in associated cost savings from the avoided section 404 permits
and associated minimization and mitigation actions or forgone benefits
from compensatory mitigation and avoidance and minimization of impacts.
The agencies also acknowledge that a reduced scope of jurisdiction
under the supplemental options for ``relatively permanent'' and
``continuous surface connection'' would result in impacts to other
Clean Water Act programs which are captured in the executive summary
and section 4 of the proposed rule RIA.
The agencies do not expect the definitions of ``continuous surface
connection'' and ``relatively permanent'' in these supplemental options
to change the analysis conducted for impacted sectors or Clean Water
Act programs for the proposed rule RIA. Based on the above analysis,
the agencies have concluded that, in magnitude, both the cost savings
and the forgone benefits are larger for the package of options
presented in this SNPRM than for the package of options presented in
the NPRM (see RIA).
B. Children's Health
This proposed action as supplemented by this notice is not subject
to the EPA's Children's Health Policy (<a href="https://www.epa.gov/children/childrens-health-policy-and-plan">https://www.epa.gov/children/childrens-health-policy-and-plan</a>) because the proposed revised
definition of ``waters of the United States'' is relevant to
implementation of the Clean Water Act but does not itself concern human
health because it is simply a definitional rule, and as such, does not
directly authorize discharges into ``waters of the United States.''
VII. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at <a href="https://www.epa.gov/laws-regulations/laws-and-executive-orders">https://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.
A. Executive Order 12866: Regulatory Planning and Review; Executive
Order 13563: Improving Regulation and Regulatory Review
This proposed action, as supplemented by this notice, is a
significant regulatory action that was submitted to the Office of
Management and Budget (OMB) for review prior to issuance of both the
NPRM and again prior to issuance of the SNPRM. The EPA and the Army
prepared an economic analysis of the potential cost savings and forgone
benefits associated with this action. This analysis is contained in
section VI.A of this preamble. See also the Regulatory Impact Analysis
for the Proposed Rule, which is available in the docket (Document ID
EPA-HQ-OW-2025-0322-0120).
While the economic analysis is informative in the rulemaking
context, the agencies are not relying on the economic analysis
performed pursuant to Executive Orders 12866 and 13563 and related
procedural requirements as a basis for this supplemental notice to
[[Page 57299]]
the proposed rule. See, e.g., Nat'l Ass'n of Home Builders v. EPA, 682
F.3d 1023, 1039-40 (D.C. Cir. 2012) (citing FCC, 556 US. at 514-15)
(noting that the quality of an agency's economic analysis can be tested
under the APA if the ``agency decides to rely on a cost-benefit
analysis as part of its rulemaking''). The information in the
supplemental economic analysis was not used to establish this
supplemental proposal for the definition of ``waters of the United
States.'' See also the Regulatory Impact Analysis for the Proposed
Rule, which is available in the docket (Document ID EPA-HQ-OW-2025-
0322-0120). Instead, the basis for this proposed rulemaking is the text
of the Clean Water Act, as informed by Supreme Court precedent, taking
into account agency policy choices and other relevant factors.
B. Executive Order 14192: Unleashing Prosperity Through Deregulation
This proposed action, as supplemented by this notice, is expected
to be an Executive Order 14192 deregulatory action. The supplemental
notice to the proposed rulemaking is expected to provide burden
reduction by narrowing the scope of waters that are jurisdictional
under the Clean Water Act in response to the Sackett decision. Thus,
the agencies anticipate that fewer Clean Water Act permits will be
required, which will result in cost savings and reduced regulatory
burden. Details on the avoided costs associated with this proposed rule
can be found in the supplemental economic analysis in section VI.A of
this preamble. See also the Regulatory Impact Analysis for the Proposed
Rule, which is available in the docket (Document ID EPA-HQ-OW-2025-
0322-0120).
C. Paperwork Reduction Act (PRA)
The proposed action, as supplemented by this notice, does not
impose an information collection burden under the PRA because this
action does not contain any information collection activities. However,
this action may change terms and concepts used by the EPA and the Army
to implement certain programs under the Clean Water Act. The agencies
thus may need to revise some of their collections of information under
other regulations to be consistent with this action and will do so
consistent with the PRA and implementing regulations. For example,
under OMB Control Number 0710-0024 the Army sometimes collects
information from project applicants to inform jurisdictional
determinations conducted consistent with the Corps' regulations at 33
CFR 320.1(a)(6), 325.9, and 331, and rule changes may warrant changes
to that collection.
D. Regulatory Flexibility Act (RFA)
The agencies certify that this proposed action, as supplemented by
this notice, would not have a significant economic impact on a
substantial number of small entities under the RFA. In making this
determination, the EPA and the Army conclude that the impact of concern
for this rule is any significant adverse economic impact on small
entities and that the agencies are certifying that this rule will not
have a significant economic impact on a substantial number of small
entities because the rule would relieve regulatory burden on the small
entities indirectly subject to the rule. In addition, this proposed
action would not impose any direct requirements on small entities. The
small entities that may be indirectly subject to this action are
largely those entities whose activities are directly covered by the
Clean Water Act sections 402, 404, and 311 programs. The proposed rule,
as supplemented by this notice, is expected to result in fewer entities
subject to these programs, and a reduced regulatory burden for many of
the entities that will still be subject to these programs. In addition,
as the proposed rule is a definitional rule and would not result in any
small entities being directly regulated by the rule, all impacts would
be indirect in nature. As a result, small entities subject to these
regulatory programs are unlikely to suffer adverse impacts as a result
of regulatory compliance.
As addressed in the Regulatory Impact Analysis for the Proposed
Rule (Document ID EPA-HQ-OW-2025-0322-0120) and in the supplemental
economic analysis in section VI.A of this preamble, the proposed rule's
clarification of the scope of Clean Water Act regulatory jurisdiction
over waters and wetlands in light of the Sackett decision may result in
a reduction in the ecosystem services provided by some waters and
wetlands, and as a result, some entities may be adversely impacted.
Some business sectors that depend on habitat, such as those catering to
hunters or anglers, or that require water treatment to meet production
needs, could experience a greater impact relative to other sectors. The
magnitude of potential changes in ecosystem services are likely to be
dependent on how States and Tribe respond to the reduction if the scope
of Federal jurisdiction under the Clean Water Act, which would impact
the significance of these impacts on these business sectors. In
addition, States and Tribes may already address waters potentially
affected by a revised definition, thereby reducing forgone benefits.
The sectors likely to be most impacted by the rule are mitigation banks
and companies that provide aquatic resource restoration services.
Because the agencies anticipate fewer waters would be subject to the
Clean Water Act regulation under the supplement to the proposed rule
than are subject to regulation under the Amended 2023 Rule, there may
be a reduction in demand for mitigation and restoration services under
the section 404 permitting program. Assessing impacts to this sector is
problematic, however, because this sector lacks a precise Small
Business Administration small business definition, and many of the
businesses that fall within this sector are also classified under
various other North American Industry Classification System categories.
Furthermore, impacts to this sector would not be the direct result of
these businesses complying with the proposed rule, rather, they would
be the indirect result of other entities no longer being required to
mitigate for discharges of dredged or fill material into waters and
wetlands that would no longer be jurisdictional under the final rule.
In addition, potential impacts would be lessened when accounting for
State and Tribal dredged and fill programs that would necessitate the
purchase of mitigation credits or to take other actions under State or
Tribal law to regulate discharges of dredged or fill material. While
other sectors may be potentially impacted (e.g., recreational sectors
related to activities such as hunting, fishing, and bird watching),
these sectors are likely not as directly impacted by a definitional
change to jurisdiction under the Clean Water Act as mitigation banks
and aquatic resource restoration services. The recreation sector, for
example, would see more limited impacts if States protect waters that
would be solely under State jurisdiction as a result of this
supplemental option. For a more detailed discussion see the Sector
Impact Assessment section of the Regulatory Impact Analysis for the
Proposed Rule. As documented in the Regulatory Impact Analysis for the
Proposed Rule located in the docket, the agencies do not expect the
cost of the proposed rule, as supplemented by this notice, to result in
adverse impacts to a significant number of small entities, since the
proposed rule would be expected to result in net cost savings for
[[Page 57300]]
many entities indirectly affected by this supplemental proposed rule.
E. Unfunded Mandates Reform Act (UMRA)
This proposed action, as supplemented by this notice, does not
contain an unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538,
and would not significantly or uniquely affect small governments. The
proposed action would impose no enforceable duty on any State, local,
or Tribal governments or the private sector.
F. Executive Order 13132: Federalism
Under the technical requirements of Executive Order 13132 (64 FR
43255, August 10, 1999), the agencies have determined that this
proposed rule, as supplemented by this notice, may have federalism
implications but believe that the requirements of the Executive Order
will be satisfied, in any event, as the agencies have conducted
consultation with State and local government officials and their
representative national organizations.
The agencies believe that a revised definition of ``waters of the
United States'' may be of significant interest to State and local
governments. Consistent with the agencies' policies to promote
communications between the Federal government and State and local
governments, the EPA and the Army consulted with representatives of
State and local governments early in the process of developing the
proposed rule to permit them to have meaningful and timely input into
its development.
Consulting with State and local government officials, or their
representative national organizations, is an important step in the
process prior to proposing regulations that may have federalism
implications under the terms of Executive Order 13132. The agencies'
federalism consultation is summarized in the agencies' November 20,
2025, notice (90 FR 52444). All letters received by the agencies during
this consultation may be found in the docket (see attachments at Docket
ID No. EPA-HQ-OW-2025-0322-0122) or in the pre-proposal recommendations
docket (Docket ID No. EPA-HQ-OW-2025-0093). The agencies prepared a
report summarizing their federalism consultation and additional
outreach to State and local governments, which is available in the
docket (Document ID No. EPA-HQ-OW-2025-0322-0122).
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This proposed action, as supplemented by this notice, may have
Tribal implications. However, it will neither impose substantial direct
compliance costs on federally recognized Tribal governments, nor
preempt Tribal law. The EPA and the Army consulted with Tribal
officials under the EPA Policy on Consultation and Coordination with
Indian Tribes early in the process of developing this action to permit
them to have meaningful and timely input into its development.
A summary of the agencies' Tribal consultation and coordination for
this rulemaking effort can be found in the NPRM (90 FR 52544-52545
(November 20, 2025)) and in the Tribal Consultation Report for the
Proposed Rule, which is available in the docket (Document ID No. EPA-
HQ-OW-2025-0322-0123). All letters received by the agencies during this
consultation may be found in the docket (see attachments at Docket ID
No. EPA-HQ-OW-2025-0322-0123) for this rulemaking or in the pre-
proposal recommendations docket (Docket ID No. EPA-HQ-OW-2025-0093).
The agencies invite Tribes to request government-to-government
consultation during the comment period by emailing <a href="/cdn-cgi/l/email-protection#6724302610081312142702170649000811"><span class="__cf_email__" data-cfemail="b7f4e0f6c0d8c3c2c4f7d2c7d699d0d8c1">[email protected]</span></a>.
All one-on-one meetings with Tribal governments must be held by the
close of the comment period for this SNPRM.
The agencies acknowledge that because they generally implement
Clean Water Act programs on Tribal lands, a reduced scope of Federal
jurisdiction as a result of the Sackett decision will affect Tribes
differently than it will affect States. Currently, of the Tribes that
are eligible, most have not received treatment in a manner similar to a
State (TAS) status to administer Clean Water Act regulatory programs.
While some Tribes have established Tribal water programs under Tribal
law or have the authority to establish Tribal programs under Tribal
law, many Tribes are still building capacity and may lack resources to
create a Tribal water program under Tribal law, to administer a
program, or to expand programs that currently exist. Therefore, Tribes
may disproportionately rely on the Federal Government for water program
implementation and enforcement of water quality violations. Tribes may
also be affected by pollution from adjacent jurisdictions. Many Tribes
are located in the arid West, where there are fewer waters that may
meet the relatively permanent standard. Nonetheless, the proposed rule,
as supplemented by this notice, preserves Tribal authority to choose
whether to include waters that are not covered under the Clean Water
Act under Tribal laws and regulations. Any decision by the Tribes to
protect beyond the limits of the Clean Water Act is not compelled by
the statute or by this proposed rule, as supplemented.
H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risk
The EPA and the Army interpret Executive Order 13045 as applying
only to those regulatory actions that concern environmental health or
safety risks that the agencies have reason to believe may
disproportionately affect children, per the definition of ``covered
regulatory action'' in section 2-202 of the Executive Order.
Therefore, this proposed action, as supplemented by this notice, is
not subject to Executive Order 13045 because this action does not
concern an environmental health risk or safety risk. Since this action
does not concern human health, EPA's Policy on Children's Health also
does not apply.
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This proposed action, as supplemented by this notice, is not a
``significant energy action'' because it is not likely to have a
significant adverse effect on the supply, distribution or use of
energy. This proposed action is a deregulatory action that would reduce
regulatory burden, including to the energy sector, and thus is not
anticipated to have an adverse effect on the supply, distribution or
use of energy.
J. National Technology Transfer and Advancement Act
This proposed action, as supplemented by this notice, does not
involve technical standards.
List of Subjects
33 CFR Part 328
Administrative practice and procedure, Environmental protection,
Navigation (water), Water pollution control, Waterways.
40 CFR Part 120
Environmental protection, Water pollution control, Waterways.
Adam Telle,
Assistant Secretary of the Army (Civil Works), Department of the Army.
Lee Zeldin,
Administrator, Environmental Protection Agency.
Title 33--Navigation and Navigable Waters
For the reasons set forth in the preamble, the Corps of Engineers
[[Page 57301]]
proposes to amend 33 CFR part 328 as follows:
PART 328--DEFINITION OF WATERS OF THE UNITED STATES
0
1. The authority citation for part 328 continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.
0
2. Section 328.3 is amended by:
0
a. Redesignating paragraph (c)(3) as (c)(4);
0
b. Redesignating paragraph (c)(4) as (c)(5);
0
c. Redesignating paragraph (c)(5) as (c)(8); and
0
d. Adding paragraphs (c)(3), (c)(6), and (c)(7).
The revisions and additions read as follows:
Sec. 328.3 Definitions.
* * * * *
(c) * * *
(3) Continuous surface connection means perennial surface water in
a wetland that is continuously connected with the surface water in the
jurisdictional water such that it is difficult to determine where the
jurisdictional water ends and the wetland begins. Temporary
interruptions in the surface water connection may occur as the result
of anomalous events such as drought or dry spell. A temporary
interruption in the surface water connection lasting no more than a
single period of up to 30 consecutive days in any given year may also
occur as a result of non-anomalous events such as low tide or a
regularly occurring dry spell.
* * * * *
(6) Perennial means having standing or continuously flowing water
every day of the year during ordinary conditions.
(7) Relatively permanent means perennial bodies of water. A body of
water does not lose its relatively permanent status if it dries up as a
result of anomalous events such as drought or dry spell. A body of
water also does not lose its relatively permanent status if it dries up
for no more than a single period of up to 30 consecutive days in any
given year as a result of non-anomalous events resulting in a temporary
interruption such as low tide or a regularly occurring dry spell.
* * * * *
Title 40--Protection of Environment
For the reasons set forth in the preamble, the Environmental
Protection Agency proposes to amend 40 CFR part 120 as follows:
PART 120--DEFINITION OF WATERS OF THE UNITED STATES
0
1. The authority citation for part 120 continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.
0
2. Section 120.2 is amended by:
0
a. Redesignating paragraph (c)(3) as (c)(4);
0
b. Redesignating paragraph (c)(4) as (c)(5);
0
c. Redesignating paragraph (c)(5) as (c)(8); and
0
d. Adding paragraphs (c)(3), (c)(6), and (c)(7).
The revisions and additions read as follows:
Sec. 120.2 Definitions.
* * * * *
(c) * * *
(3) Continuous surface connection means perennial surface water in
a wetland that is continuously connected with the surface water in the
jurisdictional water such that it is difficult to determine where the
jurisdictional water ends and the wetland begins. Temporary
interruptions in the surface water connection may occur as the result
of anomalous events such as drought or dry spell. A temporary
interruption in the surface water connection lasting no more than a
single period of up to 30 consecutive days in any given year may also
occur as a result of non-anomalous events such as low tide or a
regularly occurring dry spell.
* * * * *
(6) Perennial means having standing or continuously flowing water
every day of the year during ordinary conditions.
(7) Relatively permanent means perennial bodies of water. A body of
water does not lose its relatively permanent status if it dries up as a
result of anomalous events such as drought or dry spell. A body of
water also does not lose its relatively permanent status if it dries up
for no more than a single period of up to 30 consecutive days in any
given year as a result of non-anomalous events resulting in a temporary
interruption such as low tide or a regularly occurring dry spell.
* * * * *
[FR Doc. 2026-18317 Filed 9-8-26; 8:45 am]
BILLING CODE 6560-50-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.