Photo Courtesy of U.S. Environmental Protection Agency
EPA Administrator Lee Zeldin said the proposed rule is an attempt to codify the Supreme court’s most recent ruling on wetlands considered “Waters of the United States.”
The two federal agencies charged with ensuring that waterways considered “Waters of the United States” or WOTUS, are protected against pollution have released a proposed rule that they say will clarify decades of confusion over which wetlands and bodies of water require federal permits for construction projects that could potentially damage or disturb them.
Critics argue that the new rule would result in degraded water quality in some states, as millions of miles of streams and acres of wetlands would be removed from current federal permitting requirements.
Officials from the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers announced details of the proposal at a Washington, D.C. press conference Nov. 17.
EPA Administrator Lee Zeldin said the agencies are seeking to put in place “clear and practical” rules that are easily understood and which codify the U.S. Supreme Court’s 2023 Sackett v. EPA decision. That ruling eliminated the “significant nexus” test created by Justice Anthony Kennedy in an earlier ruling from 2006, Rapanos v. United States.
In the 2023 opinion, the court said that federal waters requiring Clean Water Act protections should only include relatively permanent, standing or continuously flowing bodies of water—such as streams, oceans, rivers, and lakes—and wetlands that are connected and indistinguishable from such bodies of water. Under the proposed rule, waters and wetlands without such a connection will no longer require a federal permit.
In the pre-publication language of the planned Federal Register notice, the agencies wrote that they “now recognize that the Clean Water Act ‘does not define the EPA’s jurisdiction based on ecological importance’ or similar impacts,” which was part of the basis for Kennedy’s “significant nexus” language.
Industry Groups Respond
Many industry groups tell ENR that they agree with the administration’s rationale for the proposed rule. American Road and Transportation Builders Association President and CEO David Bauer described the Nov. 17 action as “a long-needed return to reality that respects the Supreme Court’s Sackett decision and protects real waterways, not every puddle or roadside ditch.”
Kristen Swearingen, vice president of government affairs for the Associated Builders and Contractors, says the proposal would eliminate much of the confusion and delays under the current regulatory framework.
But others argue that the rule, if finalized in its current form, would degrade the health of ecologically sensitive waters and wetlands that previously would have fallen under federal jurisdiction.
The Chesapeake Bay Foundation notes that the Bay region is home to thousands of isolated wetlands and more than 118,000 linear miles of streams that flow intermittently or during certain seasons. Without federal protection, loopholes, waivers and limited enforcement could leave many of these wetlands at risk, says CBF’s senior policy director, Keisha Sedlacek.
“EPA’s plan to further strip wetlands protections would deal a serious blow to Bay restoration,” she said in a statement. “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.”
Several states have robust laws protecting water quality. Among them, Maryland, Virginia, the District of Columbia and California, says Larry Liebesman, a former attorney with the U.S. Justice Dept.’s Environmental and Natural Resources Division. But others do not, he adds.
“A lot of states have relied on the federal definition, so they may not have laws or regulations in place to protect state-wide aquatic resources…. The question is, what will this mean for overall water quality?” Liebesman, now a senior advisor with environmental permitting firm Dawson & Associates, told ENR.
Moreover, with fewer locations considered federal waters, the number of projects requiring state water quality certifications—establishing whether or not a project meets state water quality standards—could “be cut back significantly,” Liebesman added.
EPA will accept public comment for 45 days following the proposal’s publication in the Federal Register.
Pam is ENR’s senior editor for government coverage, focusing on federal environmental and labor issues as they relate to the construction industry. She has a degree in journalism and an M.A. in writing fiction, and has worked previously as both an editor at ENR (2007-2016) and as a freelancer for a variety of publications and clients. One of her favorite gigs involved writing about stars, black holes and the mysteries of the universe for NASA.
