A(nother) Turning Point in Federal Water Policy

The Trump Administration released a pre-publication version of a proposed rule to reduce the number of U.S. streams and wetlands that are covered by federal water pollution protections – offering new parameters for protected waterways, groundwater, ditches, converted cropland, and more.

The proposal comes two years after the Supreme Court’s decision in Sackett v. EPA, which narrowed the definition of "waters of the United States" (WOTUS) and, by extension, the protections afforded by the Clean Water Act (CWA). The proposed rule marks the latest turn following decades of back and forth over the scope of the landmark environmental law.

In order to warrant federal protection, the Supreme Court ruled in Sackett that a waterway must be “relatively permanent” – but did not define the term. The Trump EPA rule would define it as water bodies that have standing or “continuously flowing” water, at least during the wet season. This applies to tributaries, lakes, and ponds.

The Sackett decision also requires that wetlands have a “continuous surface connection” to a relatively permanent waterway in order to fall under the scope of the CWA. The new Trump rule would set a two-part test for a wetland to meet this definition: It must 1) abut, or touch, a relatively permanent water body, and 2) contain surface water at least during the wet season.

This change is a notable shift from the Biden Administration’s approach, which allowed groundwater to serve as the connection between a wetland and the water body. Relatedly, the EPA is proposing to exclude groundwater from the definition of federally protected waters entirely.

The rule would expand the range of ditches that are excluded from the water law’s protections. Under Biden, only ditches that are constructed entirely in dry land and that drain only dry land are excluded from protection.

Industry groups requiring federal water permits to move forward with construction or discharge pollution are praising the decision. Those same groups have long pushed to reduce the acreage subject to the federal protections and were critical of the Biden Administration’s implementation of the Sackett decision, arguing its interpretation of the ruling was too broad.

Environmental groups contend that broader federal protections are necessary for protecting rivers, creeks, and marshes that serve as drinking water sources, mitigate floodwaters, and naturally filter pollution.

As federal jurisdiction narrows, some states will likely expand their own water protections. Businesses operating across multiple states should anticipate a more fragmented regulatory environment, requiring careful planning and tracking of state policies.

The formal announcement in the Federal Register will trigger a 45-day public comment period on the proposed rule. Environmental groups have already signaled opposition, making court challenges virtually certain once the rule is finalized.