The Trump administration has proposed dramatic new standards under the Clean Water Act that would leave scores of wetlands and small streams more vulnerable to pollution.
Just 19 percent of wetlands by acreage — about 17,360,970 acres — in the contiguous U.S that have been mapped by the federal government would be protected under the sweeping draft “waters of the U.S.” definition unveiled Monday. That’s according to an estimate in a regulatory impact analysis conducted by EPA and the Army Corps of Engineers and released alongside the proposed rule.
Trump administration officials said the proposal conforms with Sackett v. EPA, a 2023 Supreme Court ruling that asserted that only wetlands that directly touched a relatively permanent waterway – like a river or lake – fell under the scope of the Clean Water Act and the regulatory powers of the federal government.
But the administration proposed a more restrictive interpretation of the ruling than the Biden administration did. In addition to having a physical surface connection to waterway, wetlands would need to contain “surface water” at least for the duration of the “wet season” to be considered a WOTUS, the proposal said.
“It’s probably the most limiting, the most narrow, interpretation of the reach of jurisdiction that I’ve seen so far,” said Larry Liebesman, a former Justice Department attorney who now works as a senior adviser at Dawson and Associates, an environmental permitting firm.
The effects of the proposal would differ depending on the state. In Arizona, for example, only 2.4 percent of wetlands would likely be “wet” enough to be regulated by the Clean Water Act, the agencies estimated. In Iowa, about 5 percent of wetlands would be covered by the law.
About half of states do not have state-level policies to protect or regulate wetlands and rely on the federal Clean Water Act to do so.
The proposed rule fulfills many of the requests of energy and business groups with respect to the WOTUS definition. For example, it clearly defines terms that the Supreme Court included in Sackett, such as “continuous surface connection” and “relatively permanent water,” a step the Biden administration largely did on a case-by-case and context-specific basis.
“I think they’ve put some meat on the bones, taken the language of Sackett and tried to flesh out the idea of hydrological connection and indistinguishability,” Liebesman said.
EPA and the Army Corps did not quantify the cost savings and foregone benefits of the proposal, a step that is normally included in regulatory changes. The agencies said this was due to “uncertainties associated with the available data” and that they were open to suggestions about how to quantify costs and benefits in a final rule. Members of the public have 45 days to provide comments.
EPA’s oversight of streams could also be affected by the changes, the agencies said. For example, streams will now need to have “a bed and banks” in order to fall under the Clean Water Act, the agencies’ analysis asserted.
“While many tributaries under the baseline will have a bed and banks, some will not, and those streams would lose their jurisdictional status under the proposed rule,” the analysis continued.
