Good morning. If a supplier or a client has told you the federal water rules are gone, they are ahead of the paperwork. Here is what EPA actually put out last week, and the one number in it worth remembering.
Top story — The line is now a count of days
On 9 September EPA and the Department of the Army published a supplemental notice of proposed rulemaking on the definition of "waters of the United States" (91 FR 57284). It supplements their November 2025 proposal, which drew roughly 220,000 comments. Comments on this one close 9 October 2026.
The heart of it is a bright line where there used to be judgment. Under the supplemental option, "relatively permanent" would mean "perennial bodies of water" — and "perennial" would be defined as "having standing or continuously flowing water every day of the year during ordinary conditions."
Then the exception, and this is the part to write down. A water does not lose that status if it dries up because of an anomalous event like a drought. And it does not lose it if it dries up "for no more than a single period of up to 30 consecutive days in any given year" because of a predictable, non-anomalous event — a low tide, or a dry spell that comes around the same time every year.
"A single period" is doing real work there. The agencies spell out the arithmetic themselves: a stream that ordinarily runs dry for 30 straight days each August is still perennial, but a stream that stops twice in a year for 10 days each time is not — even though 20 is less than 30. One long interruption keeps federal jurisdiction. Two short ones end it.
Quick hits
The wetland test changed shape too. The November proposal defined "continuous surface connection" as having surface water at least during the wet season and abutting a jurisdictional water. The supplemental option drops that for a harder standard: perennial surface water in a wetland, continuously connected to the jurisdictional water "such that it is difficult to determine where the jurisdictional water ends and the wetland begins." Only the portion that is genuinely indistinguishable would be jurisdictional. The agencies are also asking whether that "indistinguishability" idea makes the words adjacent and abutting irrelevant altogether.
Five years of drought resets the baseline. Buried in the same section: the agencies would treat a drought lasting continuously more than five years as the new normal conditions — at which point wetlands that had kept their connection only through drought exceptions would stop being jurisdictional. For anyone working the arid West, that is a bigger sentence than it looks.
What did not change is as important as what did. The supplemental notice makes no further changes to the proposed exclusions for certain ditches, prior converted cropland, waste treatment systems or groundwater, and no changes to the proposed definitions of "ditch," "tributary," "prior converted cropland" or "waste treatment system." If you were waiting on the ditch question, it is where it was in November. Nothing was settled last week.
The Tip — Two things this month, and neither is a permit application
One: nothing on your site changed on 9 September. This is a proposal. The current rules still govern the job you are digging today, and a supplier telling you otherwise is selling something. Do not price a change order, skip a delineation, or move a discharge point off a Federal Register headline.
Two: the evidence goes to whoever kept records. The test is now a count of days, so the next argument about a drainage swale gets won by the party with dated photographs. Pick the features on your active sites that anyone might one day call a stream, and take a geotagged photo of each on a fixed day every month, dry or wet. In two years that folder beats any opinion.
And if this affects how you bid, you have until 9 October to say so — docket EPA-HQ-OW-2025-0322 on regulations.gov. Contractors almost never file. Consultants always do.
Tool watch — [Not sponsored]
A test built on "does it flow every day" needs flow data, and there is a free national source for it. USGS Water Data for the Nation at waterdata.usgs.gov runs more than 13,500 real-time monitoring locations for streams, lakes, reservoirs, precipitation and groundwater, with over 135 years of record behind them. Pull the gauge nearest a site, see whether that stream has actually gone to zero flow and for how long, and set a WaterAlert to email you when conditions change. It will not answer a jurisdictional question — but it will tell you whether your instinct about a watershed matches the record, before you put that instinct in a bid.
That's the callout. See you next time.
The Callout — the business brief for the trades. We label every commercial placement: [Sponsor], [Affiliate], or [Not sponsored]. Today's Tool watch is our own honest read — no one paid for it. 231J Ramparts Road, Te Anau 9600, New Zealand · Unsubscribe anytime. Nothing in The Callout is legal or engineering advice. Clean Water Act jurisdiction turns on site-specific facts — take a real question to a qualified consultant or to the Corps district office.