Blog | New Federal Water Rule Would Weaken Flood Protection for People & Communities

When a developer wants to develop areas such as wetlands or intermittently flowing streams, the Clean Water Act requires them to get a permit. The Army Corps of Engineers reviews these projects to assess how they'll affect flooding, water quality, and wildlife. Then the Corps issues or denies a permit, often called a “404 permit” after the relevant section of the Clean Water Act that requires it. Since 1972, these requirements have been a cornerstone of environmental protection in this country. These permits aren't just about protecting water quality and wildlife. They're a key tool for preventing floods and keeping communities safe.

However, on November 17, the Trump administration proposed a change to these longstanding rules that would eliminate this review for millions of acres of wetlands and streams across the country. While the Waters of the United States (WOTUS) rule may appear to be about water quality and pollution control, it also represents something else: the removal of a critical flood safety review during a time when climate change is making flooding events more frequent and more severe.

Protecting Streams and Wetlands Protects Communities

The new rule significantly narrows the definition for which waters get federal protection: “wetlands” need visible standing water during wet months and must physically touch a river or stream, while “streams” must flow at least part of the year to be considered “relatively permanent” waters and thus protected under the law. This change eliminates federal oversight for ephemeral streams (those that flow only in direct response to precipitation) and wetlands that lack surface water during wet months or don't directly touch protected waters. 

The rule builds on the Supreme Court's 2023 Sackett v. EPA^{See footnote 1} decision, which narrowed wetland protections, along with earlier decisions in 2001 (SWANCC)^{See footnote 2} and 2006 (Rapanos)^{See footnote 3}  that progressively reduced federal oversight of waters and wetlands. EPA opened the rule for public comment through January 5, 2026, and plans to finalize it in early 2026.

Analysis by the Natural Resources Defense Council shows between 38 and 70 million acres of previously protected wetlands would be vulnerable to pollution or destruction under the proposed rule.^{See footnote 4}  The rule strips federal protections from 84 percent of wetlands previously eligible for protection. The Supreme Court cases that narrowed these protections all involved developers and landowners seeking to develop in areas that naturally collect and channel floodwater.

Every Clean Water Act Section 404 permit application, required whenever someone deposits dredged or fill material into waters of the United States, requires a "public interest review" that evaluates flood impacts. The Corps issues permits and conducts reviews that assess how dredge and fill projects will affect flooding in streams, wetlands, floodplains, and other waterways. These reviews reference FEMA flood maps, require analysis of project alternatives outside floodplains, and often include conditions to maintain downstream flows and minimize flooding.

Wetlands, streams, and floodplains act as an integrated natural flood control system that provides billions of dollars in protection annually. This natural drainage network functions as a system of sponges and channels that trap and slowly release surface water, rain, snowmelt, and flood waters. Without federal oversight, development could be allowed in these areas without any review of how projects might worsen flooding or block natural water flow.

The Clean Water Act has functioned as a de facto climate adaptation and flood protection law for decades, making this policy change as much about public safety as it is about water quality regulation. By removing permit requirements from much of America's natural drainage network, the new rule eliminates this flood safety review for thousands of projects that could affect community flood risks. 

Increasing Risk, Decreasing Protections

The rule particularly affects intermittent streams, seasonal waterways, and dry creek beds, which flow seasonally but remain dry for portions of the year. These temporary waterways are extremely common. A 2021 study published in Nature found that water ceases to flow for at least one day per year along 51–60 percent of the world's rivers by length, demonstrating that non-perennial waterways are the norm rather than the exception globally.^{See footnote 5} 

Despite their temporary nature, these waterways can present serious flood risks. A creek only 6 inches deep in mountainous areas can swell to a 10-foot deep raging river in less than an hour if a thunderstorm lingers over the area, according to the National Weather Service. Flash flooding can develop in just minutes or even seconds. In other words, just because a creek is dry part of the year doesn't mean it is safe to build a house or a school next to the creek bed.

These temporary waterways also play a crucial role in flood protection. During storms, stream channels, floodplains, and seasonal wetlands soak up rainwater and snowmelt that would otherwise cause flooding downstream. Under the proposed rule, much of this natural drainage infrastructure loses federal oversight, meaning developers could build in dry creek beds, seasonal stream channels, and floodplains without federal review. When developers fill these channels or build in their floodplains without federal review, communities lose this natural flood protection exactly when climate change is making these safeguards more important than ever.

A Costly Tradeoff

The timing of this policy change coincides with intensifying precipitation patterns and increasing flood risks nationwide. Over recent years, flooding has cost the United States between $30 billion and $60 billion annually in direct damages, according to Congressional Budget Office estimates.^{See footnote 6}  Climate scientists project that extreme precipitation events will become more frequent and intense, making these natural systems more valuable than ever. The new rule reduces regulatory oversight of natural flood management systems at a time when communities need more protection, not less. 

In addition to the direct physical risk to people and property posed by the flooding itself, this policy approach also raises significant fiscal concerns for flood-prone communities. By reducing protection for natural flood control services provided by the entire drainage network, the rule forces communities to rely more heavily on more expensive engineered solutions or accept greater flood damages. Making matters worse, lower-income communities often face the greatest flood risks but have the least capacity to pay for alternative flood protection measures.

Effective climate adaptation requires making the most of every resilience investment, including flood protection services provided by streams, wetlands, floodplains, and seasonal waterways. The new rule takes a different approach, reducing protections for natural flood management systems as risks are increasing.

For more than 50 years, federal policy has helped communities manage flood risks they can see coming. This rule removes flood safety review precisely even as climate change is making it more necessary. The stakes go beyond water quality or habitat for fish and wildlife. If it is finalized, this change in the rules would put millions of people, and the communities they live in, at greater risk.