EPA Proposes Scaled-Back Definition of Protected US Waters (1)

The EPA proposed Monday a revised definition of waters of the US, putting the second Trump administration’s stamp on wetlands protections.

The proposal aims to bring Clean Water Act protections for waters and wetlands in line with the US Supreme Court’s 2023 ruling in Sackett v. EPA, which reduced the scope of federal jurisdiction over waters and wetlands. The Biden administration issued a rule conforming to Sackett, but the EPA says this proposed rule is more in line with the ruling.

If finalized, the rule would reverse the Biden administration’s definition of waters of the US, or WOTUS, continuing a nearly two-decade tradition of each new president updating the terms of federal waterway protections. The public will have 45 days to comment on the proposal once it’s published in the Federal Register in the coming days.

The proposal is meant to be “durable,” and stop the swinging pendulum of new WOTUS definitions and regulatory overreach, EPA Administrator Lee Zeldin said in a statement.

Even after the Sackett ruling, the Biden administration attempted to claim most of Alaska’s Arctic Coastal Plain as wetlands protected as WOTUS.

“Democrat Administrations have weaponized the definition of navigable waters to seize more power from American farmers, landowners, entrepreneurs, and families,” Zeldin’s statement said.

The proposed rule would more clearly define terms the Supreme Court used in Sackett to determine what kind of waters are protected under the CWA.

The justices in Sackett ruled protected wetlands must be relatively permanent with a “continuous surface connection” to, and “indistinguishable” from, navigable waters, “so that there is no clear demarcation between ‘waters’ and wetlands.”

The proposal would require that for tributary streams to be considered federal waters, they have to connect to navigable waterways directly or through “features that provide predictable and consistent flow,” according to EPA’s announcement.

Sackett required WOTUS to be indistinguishable from navigable waters. The proposed rule defines that as waters that touch a navigable water and “hold surface water for a requisite duration year after year,” EPA said.

Ephemeral streams, possibly including desert washes and arroyos common in Southwestern states, are not considered protected waters under the proposed rule because they aren’t “relatively permanent,” it says. “Surface hydrology would be required to be continuous throughout the entirety of the wet season.”

Ditches, converted cropland, waste treatment systems, and groundwater would not be considered WOTUS under the proposed rule, EPA said. The groundwater exclusion is a holdover from the Biden administration, but the agency said the new proposal makes the exclusion more explicit.

The proposal would strengthen local and tribal decision-making authority, the agency said.

More Certainty

Farm and ranch groups, including the American Farm Bureau Federation, previously urged the Trump administration to exclude pipes, ditches, and other common farm features from its definition.

But those exclusions could exclude arid regions of the country from having any waters that fall under federal jurisdiction, said Larry Liebesman, a former Justice Department attorney who is a senior adviser for environmental permitting firm Dawson & Associates.

The proposal’s exclusion of ditches and swales is striking because a wetland will only be protected under the Clean Water Act if it clearly abuts a navigable water, he said.

The proposal would remove “many areas of the country that have ephemeral and intermittent streams and wetlands that are a considerable distance from traditionally flowing streams,” Liebesman said.

The new rule will be a relief to farmers and ranchers caught up in “red tape” under previous definitions, the National Cattlemen’s Beef Association said in a statement.

“Today’s WOTUS announcement finally acknowledges that the federal government should work to protect lakes, rivers and oceans, rather than regulating ditches and ponds on family farms and ranches,” said Mary-Thomas Hart, the association’s chief counsel.

The Farm Bureau said it’s still reviewing the rule, but it addresses government overreach highlighted in Sackett.

“We are pleased that the new rule protects critical water sources while respecting the efforts of farmers to protect the natural resources they’ve been entrusted with,” said Farm Bureau President Zippy Duvall.

Several Republican lawmakers stressed in comments Monday immediately preceding the announcement of the proposal in Washington that the new rule will give farmers, ranchers, contractors, and small business owners more certainty about what they are and aren’t allowed to do, thereby avoiding penalties that can range as high as $37,500 a day, according to West Virginia Gov. Patrick Morrisey (R).

Morrisey also called previous versions of the rule a “textbook example of federal overreach.”

Other lawmakers at the gathering said the EPA’s proposal is a prime example of cooperative federalism at work.

“Nobody cares more about having clean water than the state of Idaho does, and the citizens of Idaho,” said Rep. Mike Simpson (R-Idaho), chair of the House appropriations committee that handles the EPA and Interior Department.

The Trump administration is taking steps to reduce the legal uncertainty manufacturers have faced because of constantly-shifting water policy, said Jay Timmons, president and CEO of the National Association of Manufacturers.

The proposed rule “provides a definition that is more consistent with the law” and “better serves manufacturers and the communities we support across America,” Timmons said.

Wetlands Threatened

Environmental groups criticized the proposal, saying it strips protections for many streams.

“The wetlands now at risk of being bulldozed filter our water supplies and protect us from floods,” said Jim Murphy, senior director for legal advocacy for the National Wildlife Federation. “This rule will increase the risk of elevated nitrates and cyanotoxins in drinking water, harming our health.”

Isolated and ephemeral wetlands in the Chesapeake Bay region, such as depressions known as Delmarva Bays and pocosins, will lose federal protections under the rule, threatening valuable wildlife habitat, the Chesapeake Bay Foundation said in a statement.

“Absent robust federal protections, the Bay states and DC must fill the gaps or risk losing wetlands and streams that help save the Bay to short-sighted and irresponsible development and destruction,” Keisha Sedlacek, the foundation’s senior policy director, said in the statement.