The Environmental Protection Agency has proposed narrowing the definition of bodies of water subject to federal oversight, giving developers and businesses an advantage in a regulatory battle with environmentalists that has stretched beyond half a century.
EPA Administrator Lee Zeldin announced on Monday that the agency has proposed a rule revising the definition of “Waters of the United States” under the 1972 Clean Water Act. The agency worked with the U.S. Army Corps of Engineers, which regulates bodies of water, to write a rule that complies with the Supreme Court’s 2023 decision in Sackett v. EPA, which narrowed the scope of bodies of water subject to federal oversight.
“When it comes to the definition of ‘waters of the United States,’ EPA has an important responsibility to protect water resources while setting clear and practical rules of the road that accelerate economic growth and opportunity,” Zeldin said in a statement.
The Obama administration broadened the scope of WOTUS, prompting pushback from a range of industries and Republicans who said the definition would effectively mean the federal government had the power to regulate bodies of water as small as puddles. The first Trump administration later narrowed the definition.
Former President Joe Biden’s EPA put forward a WOTUS definition that included a “significant nexus” test, which helps determine which wetlands or non-navigable waters are subject to federal protection.
However, the Supreme Court in Sackett v. EPA said WOTUS was limited to wetlands that directly adjoin rivers, lakes, and other navigable bodies of water, rejecting the “significant nexus” test. Environmentalists have opposed the decision, arguing it would open millions of acres of wetlands to pollution.
The Biden administration published a new rule to align with the Sackett decision, but the Trump EPA has argued that the Biden administration failed to follow the ruling.
“Democrat Administrations have weaponized the definition of navigable waters to seize more power from American farmers, landowners, entrepreneurs, and families,” Zeldin said.
“We heard from Americans across the country who want clean water and a clear rule. No longer should America’s landowners be forced to spend precious money hiring an attorney or consultant just to tell them whether a Water of the United States is on their property,” he added.
The EPA said its proposed rule would define key terms, such as “relatively permanent,” “continuous surface connection,” and “tributary,” to align with the Supreme Court decision. The proposal said that tributaries subject to regulation must connect to traditional navigable waters, either directly or through features that provide consistent flow.
Wetlands would be subject to federal oversight if they are connected to jurisdictional waters and retain surface water for a consistent period each year. The EPA said the rule would also aim to strengthen state and tribal decision-making by providing clear federal guidelines while recognizing their expertise in local land and water resources.
Specific exclusions would be preserved and clarified for ditches, previously converted cropland, waste treatment systems, and groundwater. The agency said the proposal also incorporates local terminology, such as “wet season,” to help determine whether a water body qualifies as WOTUS.
The proposal will undergo a 45-day comment period after being published in the Federal Register, and the agency will offer several public meetings on it. Zeldin said at an event on Monday announcing the proposal that it is the agency’s goal to ensure the rule stands the test of time.
“Our goal that we set out was not to come up with a definition that is swinging the pendulum and going to any type of an extreme, where you’re at the whim of the next presidential election or the presidential election after that, where the definition is constantly changing,” Zeldin told reporters.
Asked whether the EPA would seek a legislative statute to ensure the new reforms last, Zeldin said, “Our goal here is to get it right.”
“We have a statute that’s on the books,” he said. “We have a Supreme Court case that’s now on the book that wasn’t on the books previously. And we want to follow it. We want to get it right now.”
“If Congress ever in the future chooses to change any law that gives a statutory obligation to EPA, we will follow whatever that modification is of that law in the future. We believe, post-Sackett, that we are able to get this right in a way that is durable and long-lasting,” he said.
Industry groups praised the proposed rule, arguing that it would ensure certainty to businesses.
Rich Nolan, the president and CEO at the National Mining Association, said in a statement, “Companies operating across all stages of mining have worked to move projects forward in a regulatory environment that has most closely resembled a ping-pong match with ever-changing rules. Our urgent minerals and energy needs are clear, and the regulations that allow us to meet those needs should be equally clear.”
However, a former EPA scientist opposed the agency’s proposed rule, warning that it would leave millions of acres of wetlands and small streams vulnerable to pollution.
“This is one of the most significant setbacks to clean water protections in half a century,” Betsy Southerland, former Director of the Office of Science and Technology in EPA’s Office of Water, said in a statement. Southerland now volunteers with the Environmental Protection Network, an environmentalist group.
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“This rule ignores decades of science showing that wetlands and intermittent streams are essential to maintaining the health of our rivers, lakes, and drinking water supplies. It’s a direct assault on the clean water Americans rely on,” Southerland said.
