EPA’s New Rule on Waters of the United States

On Monday, EPA Administrator Lee Zeldin is likely to announce changes to the Waters of the United States (WOTUS) rule, which has faced significant criticism. One particular case involved fines of up to $33,000 daily for a couple in Idaho who built their home on what authorities deemed “soggy” ground.

The WOTUS rule was initially created under the Clean Water Act during Nixon’s presidency to protect wetlands and define navigable waters. However, past administrations, especially under Obama and Biden, expanded its reach, causing concern among landowners that the EPA could exert control over their properties at any moment.

“The EPA must ensure clear and practical rules to safeguard water resources while fostering economic growth,” Zeldin stated.

Deregulatory Push Amidst Criticism

While the Obama administration broadened the WOTUS definition, the Trump administration rolled back some regulations. In contrast, Biden’s administration reinstated a wider federal scope, now including low-lying areas and ephemeral streams connected to navigable waters.

The forthcoming rule, building on a favorable court ruling for landowners, aims to clarify regulations while honoring a previous promise to protect waterways. Collaborating with Adam Teller from the Army’s civil engineering division, the new regulations hope to relieve farmers and ranchers who have often felt perplexed about whether their land is classified as a “puddle,” catching them in what was effectively a regulatory quagmire.

Seeking Clear Guidelines

Feedback from nine “listening sessions” indicated that Americans want clearer definitions in the WOTUS framework, balancing environmental care with agricultural and energy needs. The rule intends to define terms like “relatively permanent” and “tributary,” aligning more closely with the initial vision from the Nixon era.

For instance, to be federally regulated, a small tributary must maintain a consistent connection to navigable waters. Wetlands classified by the EPA must also retain surface water for a certain period each year.

New exemptions for groundwater and runoff, alongside land previously cultivated, will give local governments more say in permitting decisions based on their regional knowledge.

Zeldin pointed out that some Democratic administrations have heightened the definition of navigable waters, seizing power from landowners and farmers. He stressed the need for straightforward rules: “No longer should American landowners face financial burden just to understand if their property contains water regulated by the EPA.”

Concerns arose particularly from farmers and energy producers, who worried that early expansive definitions gave the EPA excessive authority even over minor land features.

The issue peaked when Michael Sackett and his wife obtained local building permits for their modest home near Priest Lake, Idaho. As construction began, the EPA claimed the site was too wet and imposed steep fines. Faced with potential costs in excess of six figures for necessary permits and suggestions of probable denial from the EPA, the Sacketts took legal action, eventually winning a unanimous ruling from the Supreme Court in 2023.

The justices clarified that “only wetlands and waters with a continuous surface connection qualify as waters of the United States.” This ruling prompted the Biden administration to adjust its rules, reflecting the court’s guidelines, while the Trump administration’s announcement further clarifies these parameters.

Senate Minority Leader Chuck Schumer criticized the decision, arguing that it undermines environmental protections, warning that it would likely lead to increased pollution and wetland degradation.