Since the proposed rule to redefine "Waters of the United States" (WOTUS) was opened for public comment in early 2026, the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) have announced a supplemental proposed rule in response to over 220,000 comments submitted. Thirty days of public comment on the supplemental proposed rule closes on October 9, 2026.

 
The new proposed rule addresses a few of the concerns held by the American Society of Landscape Architects (ASLA), National Association of Home Builders (NAHB), and other industry organizations, specifically, providing definitions for various terms. The intent of these clarifications is to make it more predictable for builders and developers to determine which land requires a permit under the Clean Water Act Section 404. Both the EPA and the Corps emphasized that these supplemental rules do not replace the original proposition but will be considered alongside it

Under the supplemental proposal, "relatively permanent" would refer to perennial bodies of water, including "waters with flow that dries up due to anomalous events such as drought or due to non-anomalous events such as low tide or a regularly occurring dry spell." These "non-anomalous," or regularly occurring, events may take occur once a year for up to 30 days for the body of water in question to be considered "relatively permanent."

Based on industry comment, the supplemental proposed rule also affirms that "continuous surface connection" would mean "perennial surface water in a wetland that is continuously connected with the surface water in the jurisdictional water such that it is difficult to determine where the jurisdictional water ends and the wetland begins." This definition also includes the possibility for anomalous or non-anomalous dry spells of up to 30 days, as with the definition for "relatively permanent."

In its comments, the NAHB intends to encourage the agencies to "consider alternatives that eliminate the uncertain wet-season test and more clearly distinguish federally regulated waters from land and features regulated under state or local law."

LASN will continue to monitor the situation.

As seen in LASN magazine, October 2026.