The Environmental Protection Agency is proposing to reduce the number of lakes, streams, wetlands, tributaries, and other waterways covered by the Clean Water Act, which regulates the amount and type of pollutants allowed in bodies of water. By some estimates, as much as 55 million acres of wetlands will no longer be subject to the law.
Advocates for greater protections say broader regulations are necessary to protect public health – especially safe drinking water – and the environment. But people working in agriculture, construction, and other businesses say the regulations are burdensome and represent government overreach.
The EPA’s proposal to scale back the rule known as “Waters of the United States” is the latest of several changes reflecting the priorities of different administrations. President Joe Biden expanded the rule to include any body of water that has a significant impact on traditional navigable waterways. But a court challenge led to a 2023 U.S. Supreme Court decision, Sackett v. EPA, which struck down that change. Sackett also determined that only permanent waterways qualified for federal jurisdiction and limited the types of wetlands that qualify.
Why We Wrote This
The EPA plans to reduce the scope of an old federal law that regulates waterway pollutants. The agency’s proposal reveals how far-reaching the rules are and how they affect multiple stakeholders.
The EPA says its proposed change aligns the rule with the Sackett decision. It defines waterways subject to the rule as “relatively permanent,” and requires a “continuous surface connection” to traditional waterways. The new definition affects wetlands in particular. It’s now in a public comment period before being finalized.
There’s a wide range of interests in the rule. Associations including those representing homebuilders, the petroleum industry, and forest owners, plus the U.S. Chamber of Commerce, filed amicus briefs in the Sackett case arguing for reduced federal authority; support for broader protections came from environmental and conservation groups, a coalition of Indian tribes, and others.
The Monitor spoke with three people from industries impacted by the EPA proposal. The interviews are edited for clarity and length.
Stacy Woods, a research director at the Union of Concerned Scientists, who studies waterways:
[The proposal says] wetlands will have to be connected to a water body, like a river, that already falls under the Clean Water Act on the surface. And this definition completely ignores how water moves in ways we can’t always see from the surface, like through soil or underground connections.The proposed changes don’t just focus on what waters we can see from the surface; they also limit clean water protections to what they’re calling relatively permanent waters. So, [permanent waters] are those that flow year-round, or at least during the wet season. But we know that water bodies like ephemeral or intermittent streams can create connections between other water bodies, and those temporary water features, along with that groundwater, really facilitate a water-to-water pathway that ultimately leads to our drinking water. While these proposed changes might sound like they are only targeting certain wetlands, temporary streams, and some ditches, the reality is that it puts all of our water at risk, including our drinking water.
The Fish and Wildlife Service estimated that wetlands in the U.S. provide $7 trillion in benefits each year. So, that’s to fishing, recreation, water quality, and flood control. [Our research estimates] that the 30 million acres of wetlands in the Upper Midwest alone provide nearly $23 billion in residential flood mitigation benefits each year.
Healthy wetlands can capture and store carbon where it would otherwise contribute to a warming planet. The current estimates are that wetlands track and store more than 30% of soil storage carbon on Earth. But when wetlands are damaged or destroyed, such as what we expect to happen when these protections are lessened, they can release that stored carbon as methane, carbon dioxide, or other heat-trapping gases that can accelerate climate change.
Roger Isom, president and chief executive of the California Cotton Ginners and Growers Association and the Western Tree Nut Association:
We do a lot of what we call tidal drainage. So, we’ll irrigate one field. There’s tile drainage underneath; it collects [the groundwater], and we move it to another field. And all of that at one point or another was in [the rule], and then another time it isn’t. And, so, probably the biggest thing is certainty. Just knowing, are we in the rule? Are we not in the rule?
We know the San Juan River, Sacramento River, the tributaries; obviously, those are in. They’re navigable waters. That’s been the base interpretation. But then we start talking about canals and drainage ditches. We’re like, well, wait a minute. When we think about navigable, those aren’t navigable.
We had hoped that the [Sackett] decision was going to give us that certainty. [The EPA proposal] is the rule coming out of that. So, we hope [this proposal will offer certainty]. But we’re not going to know until the next administration and see what they might do with it.
We’ve changed our practices to make sure we don’t exceed or cause problems in the river. For example, a few years ago, we had [the insecticide] diazinon show up in the San Joaquin River, and through the Irrigated Lands program, we were able to find the growers, find out what happened, and change some practices. And we haven’t had that issue since that time. So, we definitely change what we do because, hey, we live here, we drink the water here, we breathe the air here. And, so, it’s a balance.
On the surface, [the EPA proposal] looks like it’s addressed our biggest concerns. But we hope that it does get finalized and stays this way.
Jocelyn Brennan, interim executive director, Home Builders Association of the Central Coast in California
California is in a unique situation compared with some other states, because we do have, arguably, the most stringent environmental laws of any state. I think what our industry partners are concerned about is that the state will step in with more stringent regulations. And then it will just be a different regulatory agency that we’re dealing with, versus federal.
Builders and developers, when they’re looking at site feasibility and they see a wetland or a tributary, or some body of water, and they know that’s going to require additional mitigation, maintenance, and permitting, they’re going to keep looking for a better site. When they’re doing a constraints analysis, that’s really pretty prohibitive, because they know that it’s going to be a lot of extra time and extra cost.
In theory, [the EPA proposal] helps. It should open up additional lands for development.
Some other states will completely benefit from [the proposed changes], and it will be great, and reduce a lot of unnecessary regulations. We’re all for, obviously, protecting the environment. But some [regulations] are for standing water that’s there when we have a good rain, and it’s gone a week later. And, so, this makes a lot of sense to us.
California is experiencing a housing crisis. And yet, the building industry is the most regulated industry in California compared with other states. And thus, we have a housing crisis. So, any type of regulations that don’t make sense, that can be streamlined, are a tool to address the housing crisis.
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