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. Once the Oct. 9 deadline hit, the agencies received 88,835 public comments.
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. Public comments can be read on the Regulations.gov website.
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.
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.
The document released Sept. 4 was a pre-publication version. It was updated and officially appeared in the Federal Register on Sept. 9, which set off a new 30-day public comment period focused on the supplemental alternatives. The EPA and Army Corps must now review and consider those comments alongside the comments already received on the original proposal as they develop a final WOTUS rule.
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.
