Proposed Clean Water Rule Would Leave Most U.S. Streams and Wetlands Unprotected

A new proposal from the federal government would narrow the scope of the Clean Water Act so much that it would be legal to drain nearly any wetland or pollute the vast majority of streams, experts say, putting at risk clean drinking water and some of the country’s most important bird habitat. The public has until October 9 to submit comments on the supplemental notice of proposed rulemaking, which the U.S. Army Corps of Engineers and the Environmental Protection Agency published on September 9. 

At issue is the definition of a short phrase in the 1972 Clean Water Act that fundamentally shapes the federal government’s authority to regulate water bodies. The Act requires anyone who plans to drain, fill, or otherwise disturb “waters of the United States” to first get a permit from the EPA. But defining what counts as WOTUS, as the phrase is often shortened, has proven highly contentious. 

Developers, farmers, and others claim the Army Corps and EPA—the two agencies that implement the Act—interpret the statute too broadly, preventing them from carrying out their business. Environmental groups and scientists, on the other hand, argue that isolated wetlands, streams that only flow occasionally, and other water bodies that may seem insignificant are in fact essential for providing wildlife habitat and protecting water quality.

“A lot of different species rely on these types of ecosystems throughout the year,” says Caitlin Wall, policy director for water conservation at Audubon. “As these streams and wetlands are put at greater risk, we know that threatens birds and people.”

The contiguous United States has lost more than half of its original wetlands, according to the U.S. Fish and Wildlife Service, driven largely by drainage for agriculture and development. The loss rate increased 50 percent between 2009 and 2024, due in part to the effects of climate change. 

Each administration since President Obama has issued its own definition of WOTUS, but none has settled the matter. Several court battles have been waged over its scope, including cases before the U.S. Supreme Court. In 2023 the high court, in Sackett v. EPA, significantly narrowed the definition, ruling that wetlands are protected only if they share “a continuous surface connection” with a larger water body that the law unambiguously covers. The court also said the law applies only to streams that are “relatively permanent.” 

Last November the agencies proposed a new rule that experts say narrowed the scope of WOTUS beyond what Sackett required. It stated that, to meet the “relatively permanent” standard, streams must flow “year-round or at least during the wet season.” And it determined that, to have “a continuous surface connection,” a wetland must have “surface water at least during the wet season” and touch a water body that is WOTUS in its own right.

After receiving more than 220,000 comments on that draft rule, the agencies decided to follow up last month with a supplemental rulemaking that further narrowed the definition. “The EPA’s goal is a durable WOTUS definition that follows the law and ends burdensome regulatory uncertainty,” said EPA administrator Lee Zeldin in a statement about the latest proposal.

But legal and scientific experts say the new version would weaken the Clean Water Act to an unprecedented degree. “The last rule was the most extreme interpretation of which waters are federally protected that we had ever seen, and this goes even beyond that,” says Mark Sabath, senior attorney for the Southern Environmental Law Center. “It reflects a deliberate choice to protect as few wetlands and streams as possible.” 

If finalized, the supplemental proposal would replace the “wet season” standard with a more stringent requirement that a water body be “perennial.” That means it would protect wetlands only if they contain water year-round and would apply to only streams that flow every day, with limited exceptions for drought and other anomalies, Sabath says. Many wetlands are seasonal, however, and a large proportion of streams flow only at certain times of year. An analysis by the Natural Resources Defense Council estimated that 94 percent of wetlands and 79 percent of streams in the continental United States will not be federally protected if the rule becomes final.

Among the vulnerable water bodies are remarkably productive wetlands in the prairie pothole region of the upper Great Plains. While many of these ponds and pools are seasonal, they are nonetheless so important for bird reproduction that they’re often called “America’s duck factory.” More than half of the continent’s American Bittern population breeds there, along with some 10 million ducks and other waterfowl. As a result, the region attracts hunters and birders that support 10,000 jobs and $760 million in labor income, according to the U.S. Geological Survey. The vernal pools that enliven eastern forests with frog-song in spring and support birds like Wood Ducks and Barred Owls would also lose federal protection.

Likewise excluded would be vital but ephemeral and intermittent streams across arid regions of the West that flow for just part of the year, such as when they capture mountain snowmelt or monsoon rains. At such times these waterways create verdant strands of habitat crucial to birds like the threatened Yellow-billed Cuckoo and endangered Southwestern Willow Flycatcher. 

The proposed new WOTUS definition does not hold up to scientific scrutiny, says David Kaplan, a professor of environmental engineering sciences and director of the Howard T. Odum Center for Wetlands at the University of Florida. “Having a permanent connection to a downstream water is not the thing that makes a wetland or a headwater stream important ecologically,” Kaplan says. “There are literally millions of wetlands that lack a perennial surface connection and are still tremendously important for both their own intrinsic ecological value, but also for supporting the water quality in the streams and the rivers downstream.”

A 2015 analysis from the EPA echoed Kaplan’s assessment. “There is ample evidence that many wetlands and open waters located outside of riparian areas and floodplains, even when lacking surface water connections, provide physical, chemical, and biological functions that could affect the integrity of downstream waters,” the agency concluded. It also noted that “streams, regardless of their size or frequency of flow, are connected to downstream waters and strongly influence their function.”

States have their own varying levels of protection for streams and wetlands, Kaplan notes, but that patchwork of laws will still leave many water bodies unprotected. “The places with the most intermittent streams and isolated wetlands—non-perennial connections that are most vulnerable to losing protection—are those places where the state laws are not a safety net,” he says.