Federal wetland protections face further rollback
Updated Definition of “Waters of the United States”
Department of the Army, Corps of EngineersFederal Register 2026-18317 ↗
This rule would shrink which wetlands and streams qualify for Clean Water Act protections.
What’s at risk
Wetlands, streams, and other water bodies that currently receive federal protections could lose that status and be left without Clean Water Act safeguards. The change follows the Supreme Court's 2023 Sackett decision, which narrowed the definition of covered waters, and this rule would codify or extend that narrowing.
If this goes through
Wetlands and streams stripped of federal coverage would have no Clean Water Act protections against pollution or destruction, and that loss of status would be permanent unless a future rule reversed it.
Our plain-English read of the official notice ↗. Check it against the agency’s own words below.
The agency’s case, tested
What the agency argues, and whether its own record backs it
- 1
- Holds up
- 4
- No support given yet
The Environmental Protection Agency and the Army propose narrowing two Clean Water Act definitions. Only perennial waters would count as relatively permanent, and a wetland would be covered only where it holds year-round surface water joined to a covered water. Limited allowances are made for drought, low tide and dry spells. The agencies say this conforms the rule to the Supreme Court's Sackett decision and gives landowners clearer, more predictable lines.
Authority
No support given yet
The agencies argue that "relatively permanent" under Sackett can be read to cover only perennial waters, with exceptions for drought, low tide and dry spells, so streams that regularly dry up beyond those exceptions wouldn't be federally covered.
The agencies' strongest support is the Rapanos plurality language they quote. It says "the waters" means "continuously present, fixed bodies of water, as opposed to ordinarily dry channels through which water occasionally or intermittently flows," and that even "streams" connotes "a continuous flow of water in a permanent channel." They add that perennial waters are "most obviously 'permanent'" and that a perennial line gives landowners clear notice. Their statement that "relatively" can't stretch to cover flow for "significantly less than the majority of the time" is an outer limit, not the line they draw. Still, the document doesn't explain why a water that flows for most of the year falls outside "relatively permanent." Their own example of a stream that's dry from June through August is one such water.
The agency’s words, the record +Hide the words
The agency says
“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.”
V.B.2
Elsewhere in the same document
“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.”
V.B.2
“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.”
V.B.2.a
Effects
No support given yet
Where States and Tribes run their own dredged and fill programs or already protect the affected waters, the impacts of losing federal coverage would be smaller.
Read as the agencies wrote it, this is a conditional point. Where State or Tribal dredged and fill programs require mitigation credits or other actions, the drop in demand for mitigation businesses would be smaller. Elsewhere the agencies say States and Tribes "may already address waters" that a revised definition could affect, "thereby reducing forgone benefits," and that the size of any changes depends on how States and Tribes respond. The document doesn't count which States or Tribes have such programs. It also discloses that some would need "considerable resources," that some States can't be stricter than federal rules, and that Tribes "may disproportionately rely on the Federal Government." The conditional claim holds. It doesn't promise that the harm will be offset.
The agency’s words, the record +Hide the words
The agency says
“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.”
Regulatory Flexibility Act (RFA)
Elsewhere in the same document
“Therefore, Tribes may disproportionately rely on the Federal Government for water program implementation and enforcement of water quality violations.”
Executive Order 13175: Consultation and Coordination With Indian Tribal Governments
Economics
No support given yet
The rule wouldn't significantly harm a substantial number of small businesses, because it only relieves regulatory burden and any impacts are indirect.
The agencies' basis is legal. The rule only defines terms and imposes no direct requirements on small entities, and the agencies treat a significant adverse impact on small entities as the impact of concern under the Regulatory Flexibility Act. Fewer entities would need Clean Water Act permits, which relieves burden. The agencies openly name mitigation banks and aquatic restoration companies as the sectors most likely to be affected and call assessing them "problematic." They explain that those effects would come indirectly, from other entities no longer having to mitigate, and that State and Tribal programs would lessen them. On that reading, the certification follows. It rests on the indirect-impact reasoning rather than on counted data, and the cost figures it cites are in the Regulatory Impact Analysis, which isn't in this text.
The agency’s words, the record +Hide the words
The agency says
“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.”
Regulatory Flexibility Act (RFA)
Elsewhere in the same document
“The sectors likely to be most impacted by the rule are mitigation banks and companies that provide aquatic resource restoration services.”
Regulatory Flexibility Act (RFA)
“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.”
Regulatory Flexibility Act (RFA)
Show 1 more claim +Show fewer
Science
No support given yet
A single 30-day limit on ordinary dry periods is a reasonable way to define a temporary interruption in flow.
The agencies don't claim a scientific basis. They say plainly that there are "no precise, scientifically-grounded, nationally consistent time limits." They pick 30 days as a bright line because it's roughly a month and fits a regular dry spell that comes around the same time each year. They also say it answers Sackett's concern that property owners shouldn't need "an expensive expert consultant." As a policy line, that reasoning is stated. What's missing is any reason, hydrologic or otherwise, why one 30-day dry period keeps a water covered while two 10-day periods don't. The document only says that more than one interruption would be treated as an intermittent or ephemeral feature.
The agency’s words and the law +Hide the words
The agency says
“In consideration of the length of a year, a 30-day limit is a reasonable approach to identifying something ``temporary'' in nature.”
V.B.2
The law
“ensure the professional integrity, including scientific integrity, of the discussion and analysis in an environmental document; (E) make use of reliable data and resources in carrying out this chapter;” National Environmental Policy Act, 42 U.S.C. 4332(2)(D)-(E) ↗
Where its own record backs the agency
EconomicsThese supplemental options would produce larger cost savings and larger forgone environmental benefits than the original November 2025 proposal.Why it holds +
On the document's own record, the direction holds. Section VI.A says most intermittent streams and the majority of currently covered adjacent wetlands wouldn't qualify. The National Hydrography Dataset shows about 3.5 million miles of intermittent streams. A narrower scope means fewer permits and less mitigation. The agencies say they can't put a number on either figure, so the conclusion is about direction, not amount.
The agency says
“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).”
Programmatic Impacts
Its own record backs it
“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.”
Economic Analysis
“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).”
Economic Analysis
Read from the agency’s own notice ↗, the notice that opens this window; the full analysis comes later, so what it leaves unsupported is what to ask it to show. Every quote is checked word for word against it, a claim marked contradicted stands on a quote from the same document, and a second reading argued the agency’s side of every verdict before it was published. The verdicts are our reading; the quotes are the agency’s. A court can set aside agency action it finds “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” (5 U.S.C. 706(2)(A) ↗), which is why these gaps are worth putting in the record.
What to say
What the public could have raised, from the agency’s own document
- I oppose this action as proposed, and I ask the agency to weigh the specific harms below.
- The document submitted is not the regulatory decision document for the 'Updated Definition of Waters of the United States.' It is a 2022 peer-reviewed journal article (Park et al., Environ. Res. Lett. 17 054005) studying inundation seasonality of geographically isolated wetlands. No agency decision, proposed rule text, regulatory preamble, alternatives analysis, or NEPA review appears anywhere in this document. Because there is no agency decision document to analyze, no internal contradictions, unreasoned leaps, or procedural shortcuts within a rulemaking record can be identified from this text. The agency should provide the actual rulemaking document, including the proposed or final rule preamble, any accompanying environmental review, and the administrative record, so the public can submit substantive comments the agency is legally required to answer.
- This rule revises the definition of 'Waters of the United States' under the Clean Water Act, and I oppose any revision that removes or weakens federal protections for wetlands and streams.
- The EPA and Army Corps of Engineers are responding to the Sackett v. EPA decision by narrowing which water bodies qualify for Clean Water Act coverage, and this rollback leaves vulnerable waters without federal protection.
- I urge the agencies to adopt the broadest possible definition of 'Waters of the United States' so that wetlands and streams are not stripped of Clean Water Act protections.
Show every point from the document
- Say something only you can say. The law requires the agency to consider and respond to substantive comments, and specifics are what make a comment substantive.
In the agency’s own words
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…
On the record for this fight
4 people have filed on this fight through PLAN. The official record is still catching up.
- Angeline14 seals
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- and 2 more stewards
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Did the agency answer?
1 issue is on this record. The agency has not published its decision document yet, so it stays pending until the agency answers.
Issues on the record, awaiting the decision
- PendingThe document submitted is not the regulatory decision document for the 'Updated Definition of Waters of the United States.' It is a 2022 peer-reviewed journal article (Park et al., Environ.
The document submitted is not the regulatory decision document for the 'Updated Definition of Waters of the United States.' It is a 2022 peer-reviewed journal article (Park et al., Environ. Res. Lett. 17 054005) studying inundation seasonality of geographically isolated wetlands. No agency decision, proposed rule text, regulatory preamble, alternatives analysis, or NEPA review appears anywhere in this document. Because there is no agency decision document to analyze, no internal contradictions, unreasoned leaps, or procedural shortcuts within a rulemaking record can be identified from this text. The agency should provide the actual rulemaking document, including the proposed or final rule preamble, any accompanying environmental review, and the administrative record, so the public can submit substantive comments the agency is legally required to answer.
A hole PLAN found in the agency’s own analysis, quote verified against the document
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