A version of the following comment was submitted to the U.S. Environmental Protection Agency and Army Corps of Engineers on October 7, 2026.
We believe the WOTUS SNPRM’s proposed definitions of “relatively permanent” and “continuous surface connection” offer enhanced clarity on Clean Water Act obligations for wetlands protection, as required by the Supreme Court in Sackett v. EPA. With respect to housing development, clear and consistent definitions are essential to providing the regulatory certainty necessary to establish predictable time and cost schedules in a dynamic real estate market.
The need for regulatory certainty
Individual use of private property is already subject to a complex patchwork of federal, state, and local rules. Regulatory complexity can increase costs, extend development timelines, and limit opportunities for people to make the best use of their property. Such complexity affects everything from farming and recreation to commercial and industrial projects.
With housing, for example, regulatory complexity makes the development process for building new homes less predictable. At a time when the nation faces a severe housing shortage that is attributable largely to local regulation, individuals and developers should not be forced to shoulder unnecessary federal regulatory uncertainty that could expose them to substantial costs and penalties.
In a potent example, developer Lew Swain challenged the Army Corps in Utah federal court just two months ago over the Corps’ expansive interpretation of its Clean Water Act authorities. Swain planned a 265-home subdivision on 142 acres in Box Elder County, but the Corps claimed jurisdiction over a small irrigation ditch nearly nine miles from the nearest navigable water and then denied his permit after years of delay.
The WOTUS SNPRM’s proposed requirement of year-round flow for a water to qualify as “relatively permanent,” and defining a “continuous surface connection” to require perennial surface water in wetlands, would provide clear and objective standards. These definitions are consistent with the Supreme Court’s ruling in Sackett. These specific and measurable definitions would also provide greater predictability throughout the homebuilding or development process.
Clear definitions allow builders to determine earlier in the process whether federal jurisdiction applies and to more accurately anticipate the costs, timelines, and regulatory requirements associated with a project. This certainty is particularly important for individuals building a new home, and for small businesses and smaller developers, which may have limited capacity to absorb unexpected compliance costs, delays, or penalties. Greater regulatory clarity can therefore help reduce needless uncertainty for those seeking to build much-needed housing.
Further, while the agencies’ WOTUS SNPRM reflects the limits of federal jurisdiction under the Clean Water Act, states may adopt additional restrictions that reflect their unique environmental conditions, geographic characteristics, and policy goals—though we hope such restrictions will be data-driven and as unintrusive on private property rights as possible. The United States is extraordinarily diverse in its geography and development needs. Applying a uniform federal standard across the entire country can be inappropriate when those circumstances vary so significantly. States are often better positioned to address local environmental conditions through requirements tailored to their particular needs.
The housing development process underscores the need for an objective and appropriately tailored definition of “waters of the United States.” Additional protections should be tailored by individual states to address specific environmental needs rather than applied uniformly across all circumstances. Providing greater clarity about which waters are subject to federal protection, as proposed in the agencies’ WOTUS SNPRM, would reduce regulatory uncertainty, enable property owners to assess requirements earlier in the process, and give those seeking to use their private property greater confidence in their ability to plan and invest.