EPA Plan Could Strip Protections From 94% of Wetlands

The Environmental Protection Agency and Army Corps of Engineers on Friday proposed changes that could narrow which wetlands are protected under the Clean Water Act, a move critics say could strip federal safeguards from 94% of U.S. wetlands.

The proposal seeks public comment on alternatives for defining "waters of the United States" to determine which streams, wetlands, and other bodies of water fall under federal jurisdiction. That definition determines where Clean Water Act protections apply and when permits may be required before pollutants or fill material can be discharged into those waters.

"The EPA's goal is a durable WOTUS definition that follows the law and ends burdensome regulatory uncertainty," said EPA Administrator Lee Zeldin.

Acting Army Secretary Adam Telle, formerly the Army's assistant secretary for civil works, said in a statement, "Under President [Donald] Trump's leadership and the Army's 'Building Infrastructure, Not Paperwork' initiative, we are overhauling sclerotic government overreach to remove friction from our economy."

The proposal follows a 2023 Supreme Court ruling in Sackett v. EPA, in which Justice Samuel Alito  wrote that the Clean Water Act covers wetlands only when they have a continuous surface connection to a "relatively permanent" body of water covered by the law, without spelling out what "relatively permanent" means.

An EPA and Army proposal issued last November defined "relatively permanent" waters as those that flow year-round or throughout the "wet season." Friday's supplemental proposal would define "relatively permanent" waters as those that flow year-round, with interruptions of less than 30 days allowed in certain circumstances.

Jon Devine, director of freshwater ecosystems at the Natural Resources Defense Council, an environmental advocacy group, told The New York Times the change would be "declaring open season on the nation's waterways."

He estimated the new definition could strip protections from 94% of U.S. wetlands, up from 81% under the November proposal, since few wetlands border water that flows daily, aside from some tidal coastal marshes.

Zippy Duvall, president of the American Farm Bureau Federation, an agricultural lobbying group, said in a statement that the rule would give farmers "a clear understanding of federal jurisdiction."

Brandon Farris, executive vice president of the Steel Manufacturers Association, a steel industry trade group, said in a statement that the plan would end what he called "regulatory whiplash" for companies that have built mills near waterways.

The EPA and Army Corps will accept public comments for 30 days after the supplemental proposal is published in the Federal Register before working toward a final rule.

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