NAHB Supports Supplemental WOTUS Proposal, Calls for Clear Final Rule

NAHB submitted comments on Oct. 9 supporting the Trump administration’s September 2026 supplemental waters of the United States (WOTUS) proposal. The proposal creates a new framework for determining which waters and wetlands are federally regulated under the Clean Water Act. NAHB supports the approach and recommends changes to the final rule to give builders and landowners greater clarity.

The supplemental proposal offers an alternative to the earlier “wet season” approach. It would:

• Define “relatively permanent” waters as those that ordinarily hold or carry water throughout the year, while allowing limited temporary interruptions, such as drought or brief dry spells.

• Define “continuous surface connection” to mean that surface water in a wetland connects to a federally regulated water so closely that it is difficult to tell where one ends and the other begins. Proximity or contact alone would not qualify.

The supplemental proposal treats extraordinary disruptions, such as an unusual drought, as “anomalous events.” These events could temporarily interrupt an otherwise qualifying water or wetland connection without automatically changing its federal regulatory status. Ordinary, or “non-anomalous” events such as regularly occurring low tides, would not automatically end federal jurisdiction. Nor would seasonal dry spells, provided they occurred only once and lasted no more than 30 consecutive days in a calendar year.

The proposal is the latest step following the Supreme Court’s 2023 Sackett v. EPA decision, which clarified the limits of federal jurisdiction over wetlands. In March 2025, the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) issued guidance to field staff stating that a qualifying wetland must directly touch a federally regulated water.

The agencies then issued a proposed WOTUS rule in November 2025. Its “wet season” approach considered whether water flowed or was present -- or whether a wetland had a surface water connection -- during a region’s wetter months. The September 2026 supplemental proposal addressed concerns that wet seasons vary by region and can be difficult to identify consistently.

In its latest letter, NAHB asks the EPA and the Corps to spell out how droughts, brief dry spells and normal tidal changes would be treated. NAHB also urges the agencies to:

• Use readily available information when making decisions,
• Evaluate physically separate wetlands individually, and
• Limit federal regulation to the portion of a wetland that meets the connection standard.

Clearer rules would help builders assess property, plan projects and identify permit requirements earlier, reducing uncertainty and delays that can raise housing costs. The agencies will consider the supplemental approach alongside the November 2025 proposal before issuing a final rule.