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EPA and the Army Corps are weighing a Clean Water Act test that would cover only water flowing every day of the year. Their own notice says most intermittent streams and most wetlands now protected would fall outside it. Comments close October 9.

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On September 9 the EPA and the Army Corps published a supplemental proposal to their pending rewrite of which 'waters of the United States' the Clean Water Act covers. The new option would define 'relatively permanent' as perennial, water standing or flowing every day of the year in ordinary conditions, allowing only one dry spell of up to 30 days a year. Wetlands would be covered only where perennial surface water makes them hard to tell apart from a covered water. The agencies write that most intermittent streams would not qualify and that 'the majority of wetlands' jurisdictional under current rules would not either, with 'a significant reduction in federally jurisdictional waters' in the arid West. They give no acreage or mileage estimates. Public comments are due October 9, 2026, in docket EPA-HQ-OW-2025-0322.

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Which streams and wetlands the Clean Water Act protects is decided by a definition, "waters of the United States." It sets where you need a federal permit to fill, dredge or discharge, and it has been rewritten five times in eleven years. A sixth is under way. On September 9 the EPA and the Army Corps of Engineers added a narrower option to it.

The option: water every day of the year

In 2023, in Sackett v. EPA, the Supreme Court limited the Act to "relatively permanent" waters and to wetlands with a "continuous surface connection" to them. The agencies' November 2025 proposal read "relatively permanent" as water present "year-round or at least during the wet season." The new option reads it more narrowly:

Relatively permanent means perennial bodies of water.

Perennial means "having standing or continuously flowing water every day of the year during ordinary conditions." A water keeps that status through droughts, and through one dry spell a year of up to 30 consecutive days. Two separate dry spells, even short ones, would disqualify it. The notice's own example: a water that is dry from June to August every year "would not be relatively permanent."

For wetlands, only the part of a wetland with perennial surface water continuously connected to a covered water, so that "it is difficult to determine where the jurisdictional water ends and the wetland begins," would be covered.

What the agencies say it would remove

They do not give numbers. They do give the direction, in their own words:

The agencies anticipate that most intermittent streams would not satisfy the requirements in the supplemental option

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.

And by region: "the arid West in particular will see a significant reduction in federally jurisdictional waters."

For scale, the national map of streams shows about 1.3 million miles of perennial streams in the lower 48 states and 3.5 million miles of intermittent ones. The agencies caution that the map "does not correspond to the scope of Clean Water Act jurisdiction."

The argument for it

The agencies present it as a bright line that anyone can apply. Whether a wetland is covered "can be made by the naked eye," without "the need for any further analysis or professional consultation." They also say the option may be "the most consistent interpretation of the Sackett decision," and they acknowledge that "commenters have argued and lower courts have held that a surface water connection is not required under Sackett."

Who it affects, as the notice says

  • Landowners and the energy sector: less regulation and more certainty.
  • Mitigation banks and restoration companies: "likely to be most impacted."
  • Businesses serving hunters and anglers, and those that need to treat water: "could experience a greater impact."
  • States and tribes: free to protect waters under their own laws. Some "may need to expend considerable resources," some have laws that bar them from going beyond federal rules, and tribes, many of them in the arid West, "may disproportionately rely on the Federal Government."

On drinking water, the notice says the rule "does not itself concern human health because it is simply a definitional rule."

How to comment

Comments are due October 9, 2026, in docket EPA-HQ-OW-2025-0322 at regulations.gov, or by email to OW-Docket@epa.gov with the docket number in the subject line. Comments already filed on the November 2025 proposal count and do not need to be sent again. That proposal drew about 220,000.

What the notice does not say

  • How many acres of wetland or miles of stream would lose federal protection. The agencies say they "were unable to conduct a quantitative analysis."
  • When a final rule will come, or which option it will use. Nothing here is final.
  • Anything about ditches, farmland previously converted to cropland, or the existing exclusions. Those parts of the 2025 proposal are unchanged.

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