A proposed rule change announced by the Environmental Protection Agency and the Army Corps of Engineers in November should alarm everyone who cares about fish and wildlife. That proposal seeks to redefine the kinds of waters that can be regulated under the Clean Water Act — referred to in federal parlance as “the Waters of the United States” or WOTUS. It would narrow the current definitions to “relatively permanent, standing or continuously flowing bodies” and “wetlands that are connected and indistinguishable from such waterbodies.”
Conservation groups and water experts warn that under this interpretation, thousands of miles of tributary streams would lose federal protections, along with much of our national wetlands inventory. According to a regulatory impact analysis conducted by the EPA, upwards of 80% of our mapped wetlands would lose protections.
“This just ignores the fundamentals of how our landscape functions,” says Adam Schellhammer, mid-Atlantic regional director for American Rivers. “Our understanding of what that natural landscape should look like is already skewed, which is part of that shifting baseline syndrome that we all have now. And to see the protections on our remaining wetlands [and other waterways] being threatened in such a way is extremely concerning on a number of different levels.”
The EPA’s proposal is not a sure thing yet. A public comment period will remain open until Jan. 5, so Americans still have a little over two weeks to voice their opposition to the rule change. You can take action by commenting directly through the federal register, or by calling your representatives in Congress.
How We Got Here
The proposal that EPA Administrator Lee Zeldin unveiled on Nov. 17 would establish what the agency calls a “clear, durable, common-sense definition” of the waters protected under the Clean Water Act. This is the bedrock environmental law that regulates pollution and establishes water-quality standards for America’s rivers and freshwater systems.
The agency states that its revised definition of WOTUS will accelerate economic growth and opportunity. The move falls in line with others made by the Trump Administration to unleash American prosperity through deregulation, and to prioritize resource extraction on our public lands and waters while curtailing environmental oversight.
“The rule will cut red tape,” the EPA says, “and provide predictability, consistency, and clarity for American industry, energy producers, the technology sector, farmers, ranchers, developers, business, and landowners.”
The proposal references a 2023 Supreme Court decision, Sackett v. EPA, which stemmed from a lawsuit filed by Chantell and Michael Sackett in Idaho. The Sacketts ran afoul of the CWA while filling and developing a wetland area on their vacant lot near Priest Lake. A U.S. District Court Judge ruled that because the wetlands were adjacent to a creek flowing into Priest Lake, they were subject to CWA protections — a decision that was affirmed in the Ninth Circuit Court of Appeals, and then reversed years later by the U.S. Supreme Court.
In its 5-4 decision, the Supreme Court held that waters do not warrant protection under the CWA unless they have a “continuous surface connection” to navigable lakes and rivers. This wasn’t the first time the high court had ruled on the CWA, but it amounted to a major shift in the law’s interpretation.
The Biden Administration issued a WOTUS revision that same year to align with the Sackett decision. But according to Jack Polentes, senior policy and government relations manager for Backcountry Hunters and Anglers, the newly proposed definition goes even further than last year’s revision.
“It’s really hard to regulate something as complex and as important as the waters of the United States when definitions keep changing,” Polentes tells Outdoor Life. “This is being framed as a clarity issue. But clear rules that lead to dirtier waters aren’t a win for sportsmen and women.”
What the Rule Change Would Do
In effect, the new WOTUS definition would roll back protections for ephemeral creeks and intermittent tributaries — streams that might only flow for short durations of the year, but are also the lifeblood of many watersheds, especially in the West.
The EPA’s proposal would also narrow the scope of wetland areas that qualify as having a “relatively permanent, continuous surface connection” to navigable rivers or lakes. This means many of our currently protected wetlands — areas like bogs, marshes, and pothole lakes that provide critical habitat for migratory waterfowl and other wildlife — would no longer be protected.
“This would have serious, real-world impacts, because you can’t have strong waterfowl populations without wet places that eventually dry up throughout the year. These habitats are also important for all the other wildlife species that utilize wetland systems and transitional aquatic areas,” says Polentes. “Most of our coldwater fisheries for trout, salmon, steelhead, and char, they all depend on those smaller upstream tributaries as well. If the headwaters are degraded, those fisheries will collapse from the top down.”
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Polentes, who studied hydrology and researched wetlands in New York before coming onboard at BHA, brings up a few examples of the kinds of waters that are likely to lose protections under the proposal. This includes the pocosins found in the southeastern U.S., fens in the Rocky Mountains, and the wet meadows of the Pacific Northwest.
And in a country that has already developed, plowed over, or dredged half of its freshwater wetlands, should we really be whittling down protections for the shrinking habitats we have left?
“We cannot afford to lose much more,” Schellhammer explains. “We should really be going in the opposite direction and trying to claw some of those wetlands back.”
As examples, states in the Prairie Pothole region (which is the country’s most vital area for producing wild ducks) have already lost huge portions of their wetlands to a combination of development, agricultural practices, and drought. According to estimates from the USGS and other land management agencies, in the time since these states were settled:
- Montana has lost between 27% and 33% of its wetlands
- South Dakota has lost 35% of its wetlands
- North Dakota has lost 50% of its wetlands
- Minnesota has lost 50% of its wetlands
- Iowa has lost between 90% and 97% of its wetlands
Polentes and Schellhammer say the real travesty with the EPA’s proposal is that it willingly disregards the roles that wetlands and ephemeral streams play in healthy freshwater ecosystems. We can think of these as giant sponges and catch basins that filter water, providing some of the base flow for our larger rivers. They also help prevent flooding when those rivers surge outside their banks.
A lot of these ecosystem services are happening beneath the Earth’s surface, where groundwater connects vast networks of aquifers, springs, and other hydrologic features like veins in a circulatory system. Recognizing only the surface connections as fragmented, squiggly lines on a map completely ignores this interconnectivity.
Why We Need a Strong Clean Water Act Now More than Ever
Congress passed the CWA with overwhelming, bipartisan support in 1972, when some of our rivers flowing through industrial areas were so polluted and contaminated they were literally catching on fire.
Our stewardship of river systems, and our understanding of how they function, have come a long way since then. So, too, has our ability to destroy our waterways. The impacts of industry, development, and resource extraction are still visible in many parts of the country, including Schellhammer’s native Appalachia, where contaminated water from defunct coal mines continues to leech into streams.
“Growing up in Pennsylvania, we have some really amazing waterways. But we also have streams that have been completely destroyed by acid mine drainage,” says Schellhammer. “I can remember driving to school with my parents, and looking out the window and wondering, what’s wrong with that creek? Because it’s neon orange and it looks God awful. So I think even young children understand there is something fundamentally wrong with that.”
The impacts of pollution aren’t isolated to the East Coast, or even heavily populated areas of the country. Some of the most remote rivers in Alaska are turning orange, too. A new report from the Arctic shows that around 200 streams north of the Brooks Range are “rusting” as warming temperatures melt permafrost, releasing mining contaminants that have built up in the frozen tundra over time.
These rust-orange rivers show how interconnected our water systems are, both above and below the surface, and how the contaminants of our past can come back to haunt us in ways we might not yet understand. They are neon warning signs, and we ignore them at our own peril.
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