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# EPA Proposes Tighter Test for Federal Wetlands Protection
- URL: https://www.theamericanquorum.com/epa-proposes-tighter-test-for-federal-wetlands-protection/
- Published: 2026-09-05T05:12:51.000Z
- Updated: 2026-09-05T05:12:51.000Z
- Description: EPA and the Army propose limiting federal water jurisdiction to perennial waters and wetlands with tightly defined surface connections. The supplemental rule could reshape permitting nationwide but remains open for public comment.
- Author: News Desk
- Tags: Policy

The Environmental Protection Agency and the Army Corps of Engineers proposed a tighter federal water test on September 4 that would generally treat waters as “relatively permanent” only when they flow year-round, while allowing ordinary interruptions of no more than 30 consecutive days. The supplemental proposal, detailed in an agency [fact sheet](https://www.epa.gov/system/files/documents/2026-09/wotus%5Fsnprm%5Ffactsheet%5F508c.pdf?ref=theamericanquorum.com), would also demand a closely defined surface connection before many wetlands qualify for Clean Water Act protection.

The agencies are not issuing a final rule. They are adding alternatives to the definition of “waters of the United States,” or WOTUS, that they first proposed in November 2025, and they say the new notice neither replaces those options nor predetermines the outcome. A 30-day public-comment period will begin after publication in the Federal Register. Until a final rule takes effect, existing federal requirements remain in force, despite the political significance of Friday’s [announcement](https://www.reuters.com/legal/litigation/epa-army-corps-seek-more-input-federal-water-regulation-us-2026-09-04/?ref=theamericanquorum.com).

The distinction matters because WOTUS marks the geographic boundary of several federal pollution programs. Under [Section 404](https://www.epa.gov/cwa-404/overview-clean-water-act-section-404?ref=theamericanquorum.com), for example, discharging dredged or fill material into covered waters generally requires a permit from the Corps, with EPA oversight. A narrower boundary can reduce federal review for construction, agriculture and energy projects. It can also shift more responsibility to states and tribes, whose wetland laws, budgets and enforcement capacities differ sharply.

## The New Tests Narrow the Boundary

The supplemental notice offers two formulations for “perennial.” One would mean standing or continuously flowing surface water every day of the year during ordinary conditions. The other borrows from the 2020 rule and describes surface water that flows continuously year-round. Both focus on visible, enduring surface water rather than on an intermittent channel’s ecological or chemical relationship with downstream rivers.

For “relatively permanent,” the agencies propose including perennial waters while recognizing anomalous droughts, dry spells and similar departures from ordinary conditions. An ordinary interruption could not exceed 30 consecutive days in a year, such as a predictable low-tide period or regular dry spell. That numerical limit may look precise, but applying it will require decisions about the relevant year, ordinary conditions and the evidence needed when a field inspection captures only one moment.

The proposed “continuous surface connection” test is similarly exacting. A wetland would need perennial surface water continuously connected to a jurisdictional water so that the boundary between them is difficult to distinguish, again with a possible 30-day interruption. A more restrictive alternative would cover only wetlands that are indistinguishably part of a traditionally navigable water, territorial sea, jurisdictional impoundment or tributary, and would delete the regulatory definition of “adjacent.”

## Sackett Set the Legal Floor

The agencies are responding to the Supreme Court’s 2023 [Sackett ruling](https://www.supremecourt.gov/opinions/22pdf/21-454%5F4g15.pdf?ref=theamericanquorum.com), which rejected the broader “significant nexus” approach used to evaluate whether wetlands materially affected covered waters. Justice Samuel Alito’s majority opinion said federal jurisdiction over a wetland requires a relatively permanent body of water connected to traditional interstate navigable waters and a continuous surface connection that makes the wetland and water difficult to distinguish.

All nine justices agreed that the Idaho property at issue was outside the Clean Water Act, but the court was divided over the governing test. Justice Brett Kavanaugh, joined by three liberal justices, agreed with the judgment while warning that the majority had effectively changed “adjacent” wetlands into “adjoining” wetlands. His concurrence argued that wetlands separated from covered waters by berms, dikes or similar barriers had long been regulated and could be lost under the narrower reading.

That split leaves the agencies with competing risks. A definition extending beyond the majority’s surface-connection language could be struck down as inconsistent with Sackett. A definition hugging the most restrictive reading could invite challenges that the agencies ignored the statute’s express reference to “adjacent wetlands,” scientific evidence or practical consequences. The new alternatives appear designed to make those choices explicit before EPA and the Corps defend a final rule in court.

## Permits Turn Geography Into Costs

For regulated landowners, the appeal of a bright line is straightforward. A jurisdictional finding can determine whether a project needs a federal permit, redesign or mitigation, and uncertainty can consume time before construction begins. EPA Administrator Lee Zeldin framed the proposal as a way to give farmers, ranchers, developers, energy producers and small businesses predictable rules. The agencies also emphasize that waters outside federal jurisdiction may still be protected by state, tribal or local law.

Environmental groups see the same line differently. As [AP reported](https://apnews.com/article/epa-waters-of-united-states-wetlands-farmers-62178988f1da0ec626415bd85c88e5f6?ref=theamericanquorum.com), critics argue that a perennial-flow requirement could remove federal protection from substantial freshwater wetlands, particularly in the arid West, where surface connections may be seasonal. Wetlands can store floodwater, filter pollutants and support habitat even when their connection to a downstream river is not visibly wet every day.

Neither side can yet quantify the nationwide result from the supplemental notice alone. The ultimate footprint will depend on the final text, how “ordinary conditions” are documented and how field staff treat natural and artificial barriers. Federal withdrawal also does not automatically mean no regulation: some states have independent dredge-and-fill programs, while others largely rely on the federal floor. The same wetland type could therefore receive different treatment across a state boundary.

## A Second Proposal Signals Unfinished Work

The November [2025 proposal](https://www.epa.gov/newsreleases/epa-army-corps-unveil-clear-durable-wotus-proposal?ref=theamericanquorum.com) already sought to narrow federal jurisdiction after Sackett. It offered definitions for key terms, required tributaries to carry water through predictable and consistent flow, and generally required wetlands to touch a jurisdictional water and contain surface water during a wet season. It also proposed exclusions for certain ditches, prior-converted cropland, waste-treatment systems and groundwater.

EPA says that notice drew more than 220,000 comments during a 45-day window that closed January 5, 2026, along with input from three public meetings. The agencies now say the supplemental alternatives emerged from reviewing that record and will be considered alongside, not instead of, the original proposal. Asking for another round of input can strengthen an administrative record, but it also confirms that the central legal and operational choices remain unsettled.

The history explains the caution. Federal water definitions changed under rules issued in 2015, 2020 and 2023, while court orders produced different implementation regimes across parts of the country. EPA’s own [rule history](https://www.epa.gov/wotus/revising-definition-waters-united-states?ref=theamericanquorum.com) traces repeated revisions, and a [litigation tracker](https://eelp.law.harvard.edu/tracker/defining-waters-of-the-united-states-wotus/?ref=theamericanquorum.com) records the resulting challenges. Each administration has promised clarity and durability; neither goal can be secured by regulatory wording alone.

## The Final Rule Will Be Tested Twice

The first test will be administrative. EPA and the Corps must explain why the line they choose follows the statute and Sackett, addresses the evidence submitted by affected industries, states and environmental groups, and can be applied consistently. A court reviewing the final rule will examine that reasoning as well as the text. The supplemental notice’s alternatives give the agencies more room to show that they considered less and more restrictive options.

The second test will occur parcel by parcel. Regulators and consultants will need workable methods for deciding whether a stream is perennial, whether a dry interval is anomalous and whether a wetland’s surface water remains continuously connected. Weather records, hydrology, topography and the timing of inspections may all matter. The proposed 30-day threshold reduces one ambiguity, but it cannot eliminate disputes about measurement or evidence.

The immediate milestone is publication of the supplemental notice and the opening of its 30-day docket. The consequential document will be the later final rule, including its definitions, exclusions, implementation guidance and response to public comments. Friday’s proposal therefore changes the policy debate, not the law on the ground. It signals where the administration may draw the federal boundary—and why another round of litigation is likely to follow.