The Trump administration will soon propose a new Clean Water Act rule that could eliminate federal protections for many wetlands across the U.S., according to an internal EPA presentation obtained by POLITICO’s E&E News.
Under the proposed rule, the federal government would regulate wetlands only if they meet a two-part test: They would need to contain surface water throughout the “wet season,” and they would need to be abutting and touching a river, stream or other waterbody that also flows throughout the wet season, the presentation said.
Fewer wetlands permits would be required under the new language, according to a slide from the presentation, which was confirmed by two EPA staffers who were briefed Wednesday on the rule. Both EPA staffers, who were granted anonymity to avoid retribution, said they believed the proposal was not based in science and could worsen pollution if finalized.
The White House Office of Management and Budget is now reviewing the proposal rule, titled, “Clarifying the Legal Extent of Agency Regulation of Waters of the United States (or The CLEAR WOTUS),” an EPA spokesperson said. The spokesperson did not provide comments on the presentation or respond to staffers’ allegations that the changes are not based in science.
“The agencies plan to take final action on the rule by the end of the year,” the EPA spokesperson said.
Enacted in 1972, the Clean Water Act aims to restore and protect the health of the nation’s waters. Under the law, only “waters of the U.S.” are regulated, falling under the jurisdiction and regulatory powers of the EPA and Army Corps of Engineers.
In 2023, the Supreme Court ruled in Sackett v. EPA that only wetlands with a “continuous surface connection” to a “relatively permanent” body of water are protected by the law. The court did not explicitly define those terms, nor did the Biden administration in response to the ruling.
EPA’s upcoming rule will set definitions for those and other key terms and follow the direction in Sackett, agency officials have said. A relatively permanent water, according to the presentation, would be defined as a standing or continuously flowing body of surface water that flows either year-round or at least during the wet season.
That definition would include some, but not all, intermittent streams, the presentation said. Some smaller steams upstream of relatively permanent waters would lose Clean Water Act protections, per the presentation.
The wet season would vary depending on the location of a water body. In the arid West, for example, it would be three months, while it would be seven months in Jacksonville, Florida, per one slide.
John Paul Woodley Jr., a wetlands consultant who previously served as Virginia’s secretary of natural resources, said the language shows that the administration is trying to comply with the Sackett ruling. But he said the rule could be difficult to implement in practice, because the intensity and duration of wet seasons often varies.
“Wet seasons are not created equal. You can have a wet season that’s very wet, and jurisdiction expands, and when a wet season is dry, it contracts,” Woodley said. “So they’re going to need a methodology to account for that and overcome that difficulty.”
Overall, the language would probably result in the federal government having less jurisdiction over wetlands and waters than existed under prior rules, added Woodley, who reviewed some of the language.
The rule would also exempt more industrial waste treatment systems and ditches from the Clean Water Act. Previously, ditches constructed or excavated entirely in dry land, that drained only into dry land and that did not carry water were not considered “waters of the U.S.,” the presentation said.
Now, if the rule is finalized, a ditch would only need to be constructed entirely in dry land in order qualify as exempt. That would be the case even if it drained into a mostly permanent water, such as a canal, one slide showed.
Betsy Southerland, a former EPA career staffer in the Office of Water who reviewed some of the slides, said a key question is how the agencies will determine whether a water body or wetland is “relatively permanent.” One slide said that EPA staffers could use an online tool called WebWIMP to make such determinations, which Southerland said is based largely on precipitation trends.
“If you have a drier than average year, a lot of streams could be excluded, because it’s all based on climatically averaged monthly precipitation data,” Southerland said. “It’s going to be restrictive in terms of how many waters will be considered intermittent.”
One of the EPA staffers granted anonymity said the biggest impact of the new rule would be on wetlands, especially in the western U.S. According to one slide, if only part of a single wetland contained surface water, while the rest of it did not contain surface water, the drier part would not be a WOTUS — meaning a private company would not need a federal permit to pollute or build over that area.
The proposed new standard for wetlands, the staffer said, “knocks out the vast majority of wetlands in this country.” Many wetlands are groundwater-fed or do not contain surface water for most of the year or for the duration of a wet season, they added.
