EPA, Army Corps releases revised WOTUS rule
Environmental Protection Agency Administrator Lee Zeldin and Assistant Secretary of the Army for Civil Works Adam Telle, on Monday announced a proposed rule that they said “would establish a clear, durable, common-sense definition of ‘waters of the United States'” (WOTUS) under the Clean Water Act.
EPA has been under pressure for years to write a WOTUS rule because there were conflicting Supreme Court decisions about federal responsibility for waters that cross state lines. Various definitions of WOTUS have been challenged in the courts.
Zeldin and Telle maintained that the new proposed rule “follows the Supreme Court decision in Sackett and delivers on the Trump administration’s commitment to protect America’s waters while providing the regulatory certainty needed to support our nation’s farmers who feed and fuel the world and advance EPA’s Powering the Great American Comeback initiative.”
The agencies said they developed this proposed rule using input from multiple sources, including a pre-proposal recommendations docket, information from nine public listening sessions, and consultation comments from states, tribes and local governments.
The agencies said that “key proposed revisions” include:
- “Defining key terms like ‘relatively permanent,’ ‘continuous surface connection,’ and ‘tributary’ to appropriately delineate the scope of WOTUS consistent with the Clean Water Act and Supreme Court precedent;
- “Establishing that jurisdictional tributaries must connect to traditional navigable waters either directly or through other features that provide predictable and consistent flow;
- “Reaffirming that wetlands must be indistinguishable from jurisdictional waters through a continuous surface connection, which means that they must touch a jurisdictional water and hold surface water for a requisite duration year after year;
- “Strengthening state and tribal decision-making authority by providing clear regulatory guidelines while recognizing their expertise in local land and water resources;
- “Preserving and clarifying exclusions for certain ditches, prior converted cropland, and waste treatment systems;
- “Adding a new exclusion for groundwater; and
- “Incorporating locally familiar terminology, such as “wet season,” to help determine whether a water body qualifies as WOTUS;
- “In addition, the limitation to wetlands that have surface water at least during the wet season and abut a jurisdictional water will further limit the scope of permafrost wetlands that are considered to have a continuous surface connection under the proposed rule. These proposed changes are intended to provide clarity and consistency to the continuous surface connection definition.”
The proposed rule will be published in the Federal Register and open for public comment for 45 days. EPA and the Army will host two public meetings, both in-person and online.
Details about commenting either in writing or during a public meeting can be found on EPA’s website. “The agencies look forward to reviewing public comment while working to expeditiously develop a final rule,” a news release said.
REACTIONS
Congressional Republicans and farm and manufacturing leaders praised the rule while congressional Democrats, the Waterkeeper Alliance and the Chesapeake Bay Foundation criticized it.
House Agriculture Committee Chairman Glenn “GT” Thompson, R-Pa., said, “For too long, WOTUS allowed Washington to overreach into the everyday work of farmers, ranchers and landowners.”
“Today’s action is a strong step in finally delivering a clear, practical definition that ends the needless permitting headaches created by the Biden-era rule,” Thompson said.
“By following through on a promise to rural America, Administrator Zeldin is restoring certainty and trust where it’s long been needed.”
Senate Agriculture Appropriations Subcommittee Chairman John Hoeven, R-N.D., noted that he had fought against what he called the “regulatory overreach” of the Biden and Obama administrations, but was also cautious in his reaction, urging North Dakotans to submit comments on the rule.
“The impact of the Biden-era WOTUS rule would have been far-reaching and costly,” Hoeven said.
“Our farmers, ranchers and energy producers, among many others, would have been bogged down in federal permitting for everyday activities, imposing an unworkable regulatory burden and inflating not only their operating costs, but ultimately prices for consumers.”
“That’s why I worked to hold back this regulatory overreach under the Biden and Obama administrations and support the Trump administration in advancing a WOTUS definition that respects private property rights and the regulatory role of states. I appreciate Administrator Zeldin for working with us on this priority, and I encourage North Dakotans to submit their feedback to the EPA to ensure the final rule meets the needs of our state,” Hoeven said.
“We are pleased that the new rule protects critical water sources while respecting the efforts of farmers to protect the natural resources they’ve been entrusted with,” said American Farm Bureau Federation President Zippy Duvall.
“The Supreme Court clearly ruled several years ago that the government overreached in its interpretation of what fell under federal guidelines,” Duvall said.
“We are still reviewing the entire rule, but we are pleased that it finally addresses those concerns and takes steps to provide much-needed clarity.”
The National Cattlemen’s Beef Association announced support for the rule.
“Waters of the U.S. has been a longstanding and frustrating issue for family farmers and ranchers,” said NCBA President Buck Wehrbein, a Nebraska cattleman.
“Every few years, the definition of a ‘water of the U.S.’ has changed. Often, this meant that small water features like prairie potholes or dry ditches suddenly fell under federal regulation.”
“NCBA has spent years fighting to protect cattle producers from excessive red tape. We went to the EPA, advocated on Capitol Hill, and even took this issue all the way up to the Supreme Court to protect our members from federal overreach. We appreciate the EPA finally fixing previous WOTUS rules and supporting America’s family farmers and ranchers,” Wehrbein said.
NCBA explained, “The revised WOTUS rule ensures that only large bodies of water and their main tributaries fall under federal jurisdiction. Past WOTUS rules issued under the Obama and Biden administrations placed small, isolated water features under federal regulation. Prairie potholes, playa lakes, and even ditches that only carried water after large storms became regulated as if they were a large lake, river or ocean.”
American Soybean Association President Caleb Ragland, a Kentucky farmer, said, “Soybean farmers have been asking for a WOTUS definition we can actually put to work on the ground.”
“For too long, shifting interpretations have created real uncertainty about whether everyday decisions might trigger federal oversight,” Ragland said.
“We appreciate that the administration, along with Administrator Lee Zeldin and Assistant Secretary of the Army for Civil Works Adam Telle, is moving toward a definition that reflects how water interacts with working farmland and respects the conservation practices growers already use.
“Aligning the rule with the Supreme Court’s Sackett decision and preserving long-standing exemptions for normal farm work gives producers clearer expectations and reduces the risk of costly delays or compliance surprises,” Ragland said.
National Council of Farmer Cooperatives President and CEO Duane Simpson said, “NCFC supports this effort to streamline permitting, reduce unnecessary red tape, and ensure that water regulations are both clear and workable for stakeholders, including agriculture.”
“Farmer co-ops and their members are committed to protecting our natural resources, and today’s action is a meaningful step toward giving them the certainty required to keep doing just that while continuing to power rural economies,” Simpson said.
The leaders of the House Sustainable Energy and Environment Coalition, said, “Trump’s Polluted Water Rule will leave us with weaker clean water protections than we’ve had since the 1980s, allowing polluters free rein over our nation’s waters.”
“This reckless decision by the EPA — the agency with a mission to protect human health and the environment — now puts the drinking water supplies of millions of Americans at risk.”
“Clean drinking water is a necessity, not a privilege, and we’ve learned today just how far Trump’s EPA will go to ignore the health and safety of our families and communities,” the coalition said.
“When the American people turn on their taps to find dirty drinking water in the years to come, they can point to Donald Trump and Lee Zeldin. The EPA needs to wake up and remember its reason for existing, instead of selling out our clean water to Trump’s highest bidder.”
National Association of Manufacturers President and CEO Jay Timmons said, “Manufacturers thank EPA Administrator Lee Zeldin for listening to the concerns of our industry and revising the definition of the Waters of the United States rule to bring certainty and predictability.”
“For too long, the regulatory structure under the WOTUS rule, which often has included shifting and unclear definitions, has created legal uncertainty for manufacturers in the U.S.,” Timmins said, “undermining our ability to invest and build across the country. Understanding which bodies of water require federal oversight under the Clean Water Act is critical for manufacturers planning new projects.”
Waterkeeper Alliance said it was “sounding the alarm” about the rule.
“The Clean Water Act has already been severely weakened following the Supreme Court’s 2023 decision in Sackett v. EPA, in which the court dramatically revoked protections for thousands of bodies of water across the country,” the group said.
“Every rollback threatens the water we drink, the rivers we fish, and the wetlands that protect our communities and ecosystems,” said Kelly Hunter Foster, senior attorney for Waterkeeper Alliance.
“EPA’s new draft WOTUS rule continues to prioritize corporate interests by compromising the already weakened protections for thousands of water bodies across the country,” Foster said.
“This isn’t abstract policy, it’s a deliberate decision that disregards the real consequences for people’s health, safety and daily lives. Waterkeeper Alliance will keep fighting for the clean water that we all need and deserve.”
Chesapeake Bay Foundation Senior Policy Director Keisha Sedlacek said, “EPA’s plan to further strip wetlands protections would deal a serious blow to Bay restoration.”
“Wetlands, including those isolated from other waters, and streams that don’t flow continuously all year are critical to clean water in the Bay and its local rivers and streams,” Sedlacek said.
“They also provide habitat and spawning grounds for fish, waterfowl, and wildlife important to our region’s seafood and outdoor recreation industries. And they’re invaluable for softening the blow of extreme weather on low-lying communities like Annapolis and Norfolk.
“Absent robust federal protections, the Bay states and D.C. must fill the gaps or risk losing wetlands and streams that help save the Bay to short-sighted and irresponsible development and destruction,” Sedlacek said.