WASHINGTON — The U.S. Environmental Protection Agency and the U.S. Department of the Army announced on Sept. 4 a Supplemental Notice of Proposed Rulemaking to gather public input on additional regulatory language for defining “waters of the United States” (WOTUS) to be considered alongside the 2025 proposed rule.

This action reflects the agencies’ commitment to radical transparency and to developing a durable, final WOTUS definition that adheres to the Supreme Court’s direction in Sackett v. EPA, cuts bureaucratic red tape and protects water quality while recognizing that states and Tribes are best positioned to manage their own water resources.

The American Road & Transportation Builders Association reported that the proposal would tighten the definitions of “relatively permanent” waters and “continuous surface connection” and add a new definition of “perennial.” Most notably, “relatively permanent” waters would be limited to “perennial” waters, meaning those with standing or continuously flowing water every day of the year under ordinary conditions, subject to limited exceptions.

For the transportation construction industry, the proposal could provide a clearer jurisdictional line for seasonal or intermittent features, including certain drainage channels, ditches, culverts and streams, ARTBA noted. The rule could also provide greater certainty when determining whether wetlands adjacent to a project are subject to federal permitting requirements. These changes could help reduce unnecessary federal permitting delays and uncertainty while still maintaining strong Clean Water Act protections.

ARTBA is reviewing the proposal and will provide members with additional analysis in the coming weeks.

The supplemental proposed rule will help EPA and the Army evaluate a wider range of options as they work toward a final rule that fully implements the Supreme Court’s 2023 decision in Sackett. Once finalized, the rule will provide greater predictability for landowners, farmers, ranchers, energy producers, the technology sector, developers and small businesses while protecting water quality in coordination with states and Tribes, according to the EPA.

While WOTUS determines where federal permits are required for certain activities, waters that fall outside federal jurisdiction remain subject to regulation under state, Tribal and local law, consistent with the framework of cooperative federalism that underlies the Clean Water Act.

“The EPA’s goal is a durable WOTUS definition that follows the law and ends burdensome regulatory uncertainty,” said EPA Administrator Lee Zeldin. “Today’s action reflects our continued commitment to transparency and public input, ensuring we have fully considered a wide range of potential policy options. We look forward to public feedback on this supplemental notice, which will help strengthen the real-world expertise behind the final rule.”

“Under President Trump’s leadership and the Army’s ‘Building Infrastructure, Not Paperwork’ initiative, we are overhauling sclerotic government overreach to remove friction from our economy,” said Adam Telle, Assistant Secretary of the Army for Civil Works. “The Supreme Court’s Sackett decision delivered the certainty our nation has been seeking for decades, and today we are taking one more step to ensure our regulations adhere to that decision. We have worked alongside EPA Administrator Lee Zeldin to ensure we develop a rule that faithfully adheres to Sackett and provides an even more straightforward articulation of federal jurisdiction under Section 404 of the Clean Water Act.”

Once the supplemental proposal is published in the Federal Register, the agencies will accept public comments for 30 days.