EPA Wetlands Rule Reopens Comment After 2023 Supreme Court Cut

For climate and water-resilience professionals, the proposed WOTUS retreat is not just a legal technicality — it removes a federal backstop for wetlands that act as natural flood infrastructure and carbon sinks. The supplemental comment period is an opportunity to submit data on ecosystem services, because once jurisdictional lines are drawn, degraded wetlands can take decades to restore.

The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers announced on September 4, 2026, that they are reopening the public record on a proposed rule to redefine "waters of the United States," or WOTUS, under the Clean Water Act. The supplemental comment request arrives nearly a year after the agencies first proposed a rule to implement the Supreme Court’s 2023 decision in Sackett v. EPA, which removed federal protections for vast wetland areas and boosted property rights for landowners such as Idaho couple Michael and Chantell Sackett. The new notice is significant because supplemental rounds are not standard in run-of-the-mill rulemaking; they usually indicate that agencies need more evidence, more stakeholder input, or more options before they can finalize a legally defensible regulation.

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EPA, which removed federal protections for vast wetland areas and boosted property rights for landowners such as Idaho couple Michael and Chantell Sackett.

At the center of the rule is a decades-old definitional battle: what qualifies as a federal water. The Clean Water Act of 1972 prohibits unpermitted discharges into navigable waters, but the statute does not define the outer boundary of that term. The EPA’s latest proposal focuses on relatively permanent, standing or continuously flowing bodies of water, such as streams, oceans, rivers and lakes, along with wetlands that are directly connected to those waters. The supplemental notice is asking whether that line should be drawn differently and what the agencies should do about categories of water that do not fit neatly into the Sackett framework.

The rule’s political and economic stakes are high. The agency says it will cut bureaucratic red tape and provide greater predictability for landowners, farmers, ranchers, energy producers, the technology sector, developers and small businesses. At the same time, water-quality advocates have long argued that narrowing federal jurisdiction leaves downstream communities and ecosystems exposed to unregulated runoff, habitat loss, and flood damage. By expressly recognizing that states and tribes are best positioned to manage their own water resources, the proposal would shift much of the responsibility for wetlands protection from Washington to state and tribal governments, which have uneven funding, staffing, and regulatory standards.

The legal durability of the rule will depend on how well it tracks Sackett. The Supreme Court ruled that Clean Water Act protections apply only to wetlands that have a continuous surface connection to relatively permanent waters, rejecting the older “significant nexus” test. The EPA’s proposal to limit jurisdiction to permanent waterbodies and directly connected wetlands is clearly intended to comply with Sackett, but the supplemental request suggests the agencies remain uncertain about the precise boundaries. That uncertainty is not academic: WOTUS rules have reached the Supreme Court twice since 2006 and have been the subject of iterative rulemakings for decades, making this one of the most litigated environmental definitions in U.S. law.