In the environmental space, there is perhaps no more closely watched issue than how the US Environmental Protection Agency (EPA) defines the Clean Water Act term, “waters of the United States.”
This week, in an effort to align with the US Supreme Court’s Sackett decision, the EPA’s newly proposed definition of the term seeks to create space between “waters of the United States” and wetlands, which lack a “predictable and consistent flow” of water. (We wrote about Sackett here.)
The EPA’s proposal would reverse the Biden Administration’s more expansive definition of “waters of the United States” in an effort to be more consistent with Sackett. As proposed, for a wetland to be regulated as a “waters of the United States,” it must have a “continuous surface connection” to and to be “indistinguishable” from navigable waters, “so that there is no clear demarcation between ‘waters’ and wetlands.” And, for a tributary stream to be a “water of the United States,” it must connect to navigable waterways directly or through features that “provide predictable and consistent flow.” To fulfill language in Sackett which required “waters of the United States” to be indistinguishable from “navigable waters,” the proposed rule defines waters of the United States as waters that touch a navigable water and “hold surface water for a requisite duration year after year.”
Fundamentally, this change seeks to limit the federal government’s ability to assert authority over wetlands and certain streams. As an example, under the Biden-era definition, much of Alaska’s Arctic Coastal Plain consisted of wetlands protected as “waters of the United States” whereas now, they would be left to state regulators to manage. A regulatory impact analysis conducted by the EPA found that under the new definition, just 19% of wetlands in the contiguous United States would be federally protected — an estimated reduction of up to 55 million acres.
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