Public gives input on how to define — and regulate — nation’s waters and wetlands

The U.S. Environmental Protection Agency is seeking public input as it rewrites the definition of the “waters of the United States,” a key term in the Clean Water Act that determines over which waters the federal government has jurisdiction.

The Clean Water Act, which primarily regulates pollution, protects the “waters of the United States” (WOTUS), but the law itself does not define what that term means. That’s been done through regulations since the 1970s. A long-standing interpretation held that WOTUS included all interstate waters, including wetlands, and waters that have been or could be used for interstate commerce and their adjacent wetlands.

In 2023, the Supreme Court’s Sackett v. EPA ruling narrowed the protection of wetlands to only those areas that have a continuous surface connection to waters protected by the Clean Water Act. The change could remove protections from about half the remaining wetlands in the U.S.

Following the ruling, the EPA amended its definition of protected waters. But the 2023 interpretation has been mired in litigation and not adopted by all states.

So the EPA is rewriting the waters definition once again to be in compliance with Sackett and, according to the agency, “to ensure it follows the law, reduces red tape, cuts overall permitting costs, and lowers the cost of doing business in communities nationwide.”

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Earlier this month, the agency held four listening sessions: one each for states and tribes, one for agriculture and industry, and one for conservation and environmental groups. A listening session for local governments took place on May 6.

Many speakers advocate for clearer, narrower WOTUS definition

Vincent Messerly is the president of the Lancaster, Ohio-based Stream and Wetlands Foundation, a nonprofit that restores and preserves wetlands on behalf of companies that develop them elsewhere, also called mitigation banking. He asked the EPA to consider measurable parameters — like flow rate — for the WOTUS definition. He said previous benchmarks, like watershed size, weren’t clear enough.

“I believe it's important that this be something that could be determined 24/7, 365 days a year. It should not be based on flow duration or flow regime,” Messerly said. “These are too complex and will lead to too many discrepancies, while the need for revised regulatory definition of boldness is clear.”

Prianka Sharma, vice president for regulatory affairs at the American Road and Transportation Builders Association, urged the EPA to exclude roadside ditches and ephemeral drainage features from the WOTUS definition. She said compliance with WOTUS has been difficult.

“Regulatory uncertainty is not just a paperwork issue, it's the death of innovation. In cold weather states, permitting delays can mean missing an entire construction season, slowing down critical safety upgrades,” Sharma said.

“Farmers, landowners and small businesses are the ones who suffer the most when we don't have clear rules,” said Garrett Hawkins, a fifth generation farmer from Appleton City, Missouri and president of the Missouri Farm Bureau. “This uncertainty forces us to hire experts just to get guidance on whether we can use common agricultural practices on our farms. For decades, we've been living under a guilty until proven innocent regime because previous administrations have interpreted the Clean Water Act too broadly, leaving the threat of violations with penalties hanging over our heads.”

More than half the country’s wetlands have been drained

Wetlands clean water, help reduce flooding, and provide habitat for animals and recreational opportunities for people. More than half this nation’s wetlands have already been drained and developed and the loss of more wetlands could exacerbate storm damage in flood-prone areas.

Some states have stepped up wetlands protections, while others have not; that, and the fact that wetlands are not always contained by state borders makes federal regulations particularly consequential.

Kate Boicourt, director of the Environmental Defense Fund’s climate resilient coasts and watersheds team, emphasized the current threats wetlands face and asked that the 2023 WOTUS definition be kept in place.

“We feel strongly that while it tremendously narrowed the scope of wetlands protection, that the 2023 amended rule conforms to the court's opinion and urge the agencies to take no further action to change a definition that would impact the wetlands and waters we depend on,” she said. “Losing protections will increase costs and confusion for Americans.”

The WOTUS definition has regularly been challenged by various interests and four previous Supreme Court cases have taken it up.

Participate in the next listening post

The testimonies from the meetings will be reviewed by the EPA along with the nearly 35,000 comments that have already been submitted to the agency.

A second listening session for the public is scheduled to be held Thursday, May 29 at the Utah Department of Environmental Quality Multi-Agency State Office Building in Salt Lake City, Utah, or virtually over Zoom. Find a link to register at epa.gov/wotus/public-outreach-and-stakeholder-engagement-activities.

This story is a product of the Mississippi River Basin Ag & Water Desk, an independent reporting network based at the University of Missouri in partnership with Report for America, with major funding from the Walton Family Foundation.