Trump EPA proposes rule that would strip protection from most US streams and wetlands

The Environmental Protection Agency and the Army Corps of Engineers issued a supplemental proposal on September 4 that would narrow the legal definition of “waters of the United States,” the phrase that determines which streams, wetlands and other waterways receive federal protection under the Clean Water Act.

The new proposal sets a “relatively permanent” test requiring that a waterway hold water every day of the year under normal conditions to qualify for protection, a standard drawn from the Supreme Court’s 2023 ruling in Sackett v. EPA. Wetlands would keep federal protection only if they connect directly to a water body that meets that daily-flow standard.

Elizabeth Southerland, a former EPA official who spent more than three decades at the agency, said the definition “will disallow all seasonal rivers in the West that only flow three months of the year.” She said the new standard “requires flow for 11 months of the year.”

The agencies’ own supplemental proposal states that “the greatest impact would be in regions where intermittent streams drive much of the hydrology, particularly in the arid West.”

The proposal does include a drought provision: wetlands and waters that stop flowing because of drought would keep their federal protections for up to five years. If the drought continues beyond that period, the protections would lapse.

Jon Devine, a senior attorney at the Natural Resources Defense Council, called the new proposal “a humongous rollback” and said it is “a bigger rollback than their initial proposal.” He said the rule “would virtually eliminate protection for freshwater wetlands.”

J.W. Glass of the Center for Biological Diversity said the EPA’s approach “will destroy thousands of miles of waterways critical to wildlife.”

Tarah Heinzen, legal director at Food & Water Watch, said the administration is “shamelessly doubling down on its initial terrible proposal,” calling it “yet another sledgehammer to our bedrock Clean Water Act.”

EPA Administrator Lee Zeldin defended the proposal, saying the agency’s goal is “a durable WOTUS definition that follows the law and ends burdensome regulatory uncertainty.” EPA press secretary Brigit Hirsch said “landowners, farmers, ranchers, energy producers, developers, and small businesses deserve greater regulatory clarity and predictability from EPA.”

The supplemental proposal follows an initial WOTUS rule the agencies issued in November, which drew more than 220,000 public comments during three public meetings. The agencies said the new version responds to that feedback by going further in narrowing the rule’s scope.

The definition of “waters of the United States” has been fought over in court and in successive rulemakings for more than two decades, shifting with each new administration. The 2023 Sackett decision narrowed the law’s reach by requiring wetlands to have a “continuous surface connection” to a larger protected water body, removing federal oversight from millions of acres nationwide. The current proposal builds on that ruling by applying the same permanence standard to the streams and rivers that feed those wetlands.

Waterways that lose federal protection under the Clean Water Act would no longer require a federal permit before being filled, dredged or polluted, leaving regulation to individual states, some of which have their own wetland and stream protections and some of which do not.

Once the supplemental proposal is published in the Federal Register, the public will have 30 days to submit comments before the agencies finalize the rule.