Environmental Protection Agency Administrator Lee Zeldin said last week that he plans to make good on a commitment to revise the “waters of the United States” definition, leading conservation groups to worry what will happen to federally protected waters and wetlands.
One advocate says the new administration’s approach turns a blind eye to science showing how all wetlands — most especially those to be erased from federal jurisdiction – serve vital protective functions.
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Sworn in Jan. 29 to lead the federal agency with the mission to protect the nation’s human health and environment, Zeldin explained during a press briefing March 12 that while going through the confirmation process, he had spoken with senators who “were passionately advocating on behalf of their farmers, their ranchers and other land owners” about issues concerning waters of the U.S., often called by the acronym WOTUS.
He vowed that as soon as he got into office, he would do everything in his power to fix “WOTUS once and for all” and the agency is “pursuing a definition that is simple, that is durable and it will withstand the test of time,” Zeldin said.
The federal definition has been the focus of a fair number of lawsuits, since it was first approved as part of the Clean Water Act, which is administered by the EPA and Army Corps of Engineers. Enacted in 1972, the act prohibits discharging pollutants without a permit from a point source into “navigable waters,” defined in the statute as “the waters of the United States, including the territorial seas.”
The EPA calls “waters of the United States” a threshold term that “establishes the geographic scope of federal jurisdiction” under the Clean Water Act. The term “waters of the United States” is not defined within the Clean Water Act. Agencies were given the authority at the time to determine what qualifies, and the definition has undergone a few modifications since then.
The most recent change is the result of a May 2023 Supreme Court decision known by the plaintiffs’ surname, Sackett v. EPA. Judges ruled in favor of the Idaho landowners, who argued that the section of their property they were fined for backfilling was not considered “waters of the United States” because the wetlands were not adjacent to navigable waters. The case led to the federal definition of WOTUS being amended to exclude noncontiguous wetlands.
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The EPA stated March 12 in a press release that the Sackett case, “which stated that the Clean Water Act’s use of ‘waters’ encompasses only those relatively permanent, standing or continuously flowing bodies of water forming streams, oceans, rivers and lakes,” will guide the review.
As part of the process, the agencies said in the announcement that there were plans to hold at least six listening sessions over the next few months both virtually and in person. Registration and dates are to be posted on the EPA website.
Zeldin said during the press conference that, “what we’re looking for is to simply follow the guidance from Sackett. It gave us a clear path in determining what waters are waters of the United States. It found that only those wetlands with a quote, ‘continuous surface connection,’ to a relatively permanent water are waters of the United States,” Zeldin said, adding that the court also struck down the long-used “significant nexus test, leaving only those wetlands that abut or are adjacent to waters of the United States as jurisdictional.”
Republican senators and representatives offered their support during the briefing as well as Farm Bureau President Zippy Duvall.
“WOTUS has been a pain in the side for our farmers and ranchers. Our farmers and ranchers want to do what’s right; they just want to know what right is,” Duvall said, adding that the last administration had “vague wording like ‘relatively permanent.’ Can anybody define that,” Duvall asked. “We look forward to that clarity.”
In a statement last week, National Association of Home Builders Chairman Buddy Hughes, a home builder and developer from Lexington, said the organization “commends the EPA for moving to make changes to the WOTUS rule that will protect our nation’s waterways and provide builders and developers the clarity and certainty they need in the federal wetlands permitting process to help house America’s citizens.”
Opposition in the week since the announcement has been at least as equally vocal and perhaps more strongly worded.
The Environmental Protection Network, an organization of more than 650 former EPA career staff and political appointees, said in a release that it “strongly condemns” the EPA’s “rollback of federally protected waters and wetlands, coupled with the release of a new guidance that significantly narrows the scope of the Clean Water Act.”
A former EPA office director Betsy Southerland warned in a statement from the network that “The ‘Sackett’ decision excluded about 60% of wetlands and all ephemeral streams from federal protection. With this guidance, Administrator Zeldin is now codifying an even narrower interpretation of ‘relatively permanent waters,’ which could strip protections from countless seasonal and intermittent streams. Scientific evidence is unequivocal: These waters are vital to maintaining the health of major rivers and lakes. Without them, drinking water quality will decline, and the nation’s waters will be further imperiled.”
Adam Gold, Coasts and Watersheds Science manager for the Environmental Defense Fund, told Coastal Review that with the Trump administration’s intention to narrowly implement the 2023 Supreme Court Sackett v. EPA decision was, “to collect public comment on ambiguous terms from the Sackett decision, like a ‘continuous surface connection.’ This process will likely further limit protections for North Carolina’s wetlands.”
Gold said that while it remains to be seen if there will be a new WOTUS rule from this process, the new EPA announcement seems to point toward “a potential wetness test or surface water requirement where wetlands may be excluded from Clean Water Act protections if they dry out, even for part of the year, and therefore do not have a ‘continuous surface connection’ to water bodies.
“This approach ignores the science that clearly shows how all wetlands, especially those that would be most likely to lose protections, provide essential flood reduction, water quality and ecologic benefits.”
On the state level
Around the same time the U.S. Supreme Court ruled in favor of the Sacketts, the North Carolina General Assembly directed the state Environmental Management Commission in the 2023 Farm Act to align the state definition of wetlands with the federal definition. This removed any state wetlands protections beyond those meeting the federal definition.
The law required that the commission insert the sentence, “Wetlands classified as waters of the State are restricted to waters of the United States as defined by” the federal code as it was written into the state’s wetlands definition, and the wording may not be contested by the Rules Review Commission.
The North Carolina Department of Environmental Quality began implementing the definition when the act was passed in June 2023 and the Environmental Management Commission has been going through the steps to codify the rule.
“The EPA guidance confirms that federal protection for wetlands will be limited and millions of wetlands, including coastal wetlands, will be at risk,” Grady O’Brien, water policy manager for the North Carolina Conservation Network, told Coastal Review.
“However, federal jurisdiction has no relationship to North Carolina’s interest in protecting wetlands for flood storage,” he continued. “In fact, the Sackett decision stated that the Supreme Court expected states to protect wetlands independent of federal jurisdiction. Now would be a good time for the North Carolina General Assembly to revisit state wetlands protections to prevent additional flooding.”
Gold, with the Environmental Defense Fund, said that if wetlands must have surface water connections nearly year-round to have Clean Water Act protections, the organization’s research published last year in Science estimates that this could leave up to 3.2 million acres of nontidal wetlands in the state without that layer of federal protection.
“The lack of state-level wetlands protections in North Carolina means that the only layers of protection left could be local protections or ‘protected’ public lands. With forthcoming changes to the WOTUS definition, we can expect increasing wetlands loss and increasing risks to people and homes due to more dangerous flooding, declining water quality and the loss of vital habitat,” Gold said.
Southern Environmental Law Center Senior Attorney Julie Youngman told Coastal Review that Trump’s EPA announced that it intended to roll back federal wetland protections even further, “endangering North Carolinians because the General Assembly has tied us directly to whatever the federal government does, no matter how harmful to North Carolinians. In light of EPA’s malicious actions, the General Assembly must protect North Carolina’s wetlands at the state level, to protect communities from flooding, hurricanes, and harm to our water supplies and seafood industry.”
Related: Commission OKs proposed wetlands rule for public comment
Jessie Ritter, associate vice president of water and coasts with the National Wildlife Federation, told Coastal Review that North Carolina’s wetlands and waterways are essential to the health of our coasts because they buoy our fisheries, support the economy and buffer communities from extreme weather.
“A Supreme Court decision in 2023 left many North Carolina wetlands and streams without federal protection and a state law passed later that year also eliminated state protections for these waters,” Ritter said. “The recent announcement from the EPA suggests the agency plans to remove federal safeguards for even more water bodies. If this happens, coastal communities will see increased development immediately upstream, leading to more flood-prone rivers that carry dirtier water to our bays.”
Coastal Carolina Riverwatch Executive Director Lisa Rider told Coastal Review that as a lifelong coastal North Carolinian, she knows firsthand that wetlands are more than just a word being debated over definitions.
“Wetlands are our first line of defense against flooding, acting like natural sponges that absorb stormwater before it can rush into our communities “One acre of wetland can hold up to 1.5 million gallons of water, reducing flood risks and protecting our homes and businesses. They also filter out pollution and prevent runoff from overwhelming our coastal waters,” Rider said.
