The supplemental notice of proposed rule is now officially published as 91 Fed. Reg. 57284, and the comment deadline is Oct. 9, 2026.
By STAFF REPORTS
The U.S. Environmental Protection Agency and U.S. Army Corps of Engineers released a significant new step in the long-running effort to redefine “waters of the United States,” or WOTUS, heading into the Labor Day weekend.
On Sept. 4, just as most people were getting started on their extended Labor Day weekend, the agencies announced a Supplemental Notice of Proposed Rulemaking that adds new regulatory alternatives to the WOTUS rule they originally proposed in November 2025. The WOTUS rule defines which waters and wetlands are subject to federal jurisdiction under the Clean Water Act, including the Section 404 dredge-and-fill permitting program. (US EPA)
The supplemental proposal is not a final rule, and it does not replace the November 2025 proposal. Instead, EPA and the Corps are expanding the range of options they may consider before adopting a final WOTUS definition.
The agencies proposed the initial rule on Nov. 20, 2025, as part of their effort to implement the U.S. Supreme Court’s 2023 decision in Sackett v. EPA. A 45-day public comment period closed Jan. 5, generating more than 220,000 comments. EPA and the Corps say the new supplemental proposal responds to issues raised during that process and provides another opportunity for targeted public input. (US EPA)
The new document focuses primarily on two of the most important jurisdictional questions in the rule: what qualifies as a “relatively permanent” water, and what constitutes the “continuous surface connection” necessary for federal jurisdiction over certain wetlands.
The November proposal contemplated using a “wet season” standard in both areas. The supplemental proposal now puts a substantially different option on the table: generally limiting “relatively permanent” waters to perennial waters, meaning waters that stand or flow continuously throughout the year under ordinary conditions, subject to limited exceptions for droughts, dry spells and similar temporary interruptions.
For wetlands, the agencies are also seeking comments on an alternative that would require perennial surface water in the wetland to be continuously connected with another jurisdictional waterbody so that it is difficult to determine where the waterbody ends and the wetland begins.
These are additional alternatives, not decisions EPA and the Corps have already made. The agencies specifically state that they will consider the supplemental options alongside those contained in the November 2025 proposal and will not prejudge the contents of the final rule. (US EPA)
The procedural clock has not started yet. The document released on Friday remains a pre-publication version. Once it appears in the Federal Register, likely later this week, EPA and the Corps will open a new 30-day public comment period focused on the supplemental alternatives. The agencies will then consider those comments alongside the comments already received on the original proposal as they develop a final WOTUS rule. (US EPA)
The development is particularly relevant in Florida, where the distinction between federal WOTUS jurisdiction and the state’s broader Environmental Resource Permitting (ERP) program directly affects wetland permitting and the interaction between ERP and Clean Water Act Section 404 requirements.
The Florida Specifier will follow this alert later this week with an in-depth analysis of the supplemental proposal, including how it compares with Florida’s formal comments on the 2025 rule and what the new alternatives could mean for federal wetland jurisdiction and permitting in Florida.
