A new EPA proposal would limit the agency’s ability to enforce clean water rules

The Trump administration on Monday announced a major new proposal that could significantly limit the federal government’s ability to enforce laws concerning pollution in waterways and wetlands.

The proposed rule from the Environmental Protection Agency pertains to the government’s definition of “waters of the U.S.” (WOTUS), a term that’s been the subject of decades of legal fights between developers, environmentalists and property owners.

“There may not be an acronym that's more important than WOTUS, and what it means and how it's defined is quite important,” EPA Administrator Lee Zeldin said announcing the new rule. “My goal, right from the onset, was to come up with a definition that no matter what would happen in November of ‘28 or November of 2032, that you're going to keep this definition.”

After a 2023 decision from the U.S. Supreme Court severely limited the federal government’s oversight of waterways, the Biden administration changed federal regulations to comply with the Court’s stricter requirements. But Trump administration officials and industry advocates argue the Biden administration’s policy still went beyond their legal authority, promising Monday’s proposal would provide long-sought clarity and stability.

“This wasn't about taking a pendulum and swinging it as far as you can up against another edge,” Zeldin added. “This is about getting it right, and I think that our farmers and our ranchersand our landowners in the states absolutely deserve it.”

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In Sackett v. EPA, the Supreme Court held that, in order for wetlands and waterways to be subject to the protections granted by the Clean Air Act, they must be “relatively permanent” and connected to “traditional interstate navigable waters.” The wetlands must also have a "continuous surface connection” with that water, such that“there is no clear demarcation between ‘waters’ and wetlands.”

The EPA’s new proposal provides formal definitions for some of the terms included in Sackett — labeling a “relatively permanent” waterway, for example, as one that is “standing or continuously flowing year-round or at least during the ‘wet season,’” and “continuing surface connection” to mean “jurisdictional waters “ that “have surface water at least during the wet season,” according to an EPA fact sheet.

According to Royal Gardner, an environmental law professor at Stetson College of Law and author of a 2024 book on the history of WOTUS, Monday's proposed EPA rule represents a significant blow to Clean Water Act protections, but one not as devastating as some in the environmental community had feared.

“My initial read is that the Trump administration was not as aggressive as it could have been,” Gardner told Scripps News in an interview. Given the rules laid out in the Sackett decision, “the agencies have taken a moderate view of what constitutes ‘indistinguishable’” he added.
Many environmental groups, meanwhile, responded with outrage.

The EPA proposal is a “reckless assault on streams, wetlands and other waters,” said Jon Devine, director of freshwater ecosystems at the National Resource Defense Council. “What the Trump administration is proposing is to exploit language in the court's ruling to further weaken what the law can protect, to limit the kinds of streams and wetlands that are protected from pollution and destruction under the law.”

“The only thing they've done is made it easier to pollute. And if that was their goal, it looks like they are proposing to do that,” echoed Nancy Stoner, senior attorney with the Environmental Law and Policy Center and former Acting Assistant Administrator for Water in the EPA during the Obama administration.

Stoner argued that if the Trump administration wanted moderation, the EPA could’ve maintained the Biden administration’s revised rules issued after the Sackett ruling. Instead, she suggested Trump administration officials pushed forward with plans benefiting industry over safety.

“I see no clarity benefits from this,” she told Scripps News. “I see no reason to believe the back and forth will end. And that's pretty sad, really. They had the opportunity to take the high road, and they failed to do so.”

Stoner, Devine and Drew Caputo — who also decried the new rules as vice president of lands, wildlife, and oceans at EarthJustice — all refused to rule out the possibility of pursuing legal actions against the Trump administration once the policy was finalized.

Yet according to Gardner, environmentalists’ prospects challenging the WOTUS rule in court are significantly hampered by Sackett. Indeed, he suggested legal challenges were just as likely from industry groups and others that argue the EPA rules don’t go far enough with deregulation.

“I would not be surprised to see litigation coming from the other side,” Gardner said.