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A wave of letters signed by environmental groups across the country raise concerns about a proposed federal ruling that would limit which waterways and wetlands are protected under the Clean Water Act.
The Environmental Protection Agency and the U.S. Army Corps of Engineers released a revision in November that further narrows the definition of what is considered protected “waters of the United States.” An open comment period for the proposal ended in January.
The ruling could potentially remove protections from nearly 80% of American wetlands, according to an analysis by the EPA.
Conservation groups warn the change threatens biodiversity, flood prevention and clean drinking water. But some farm groups argue the new definition provides needed clarity to landowners about which waters are included, and which ones are not.
The EPA says the changes comply with a 2023 Supreme Court decision, which ruled the Clean Water Act only protects wetlands and bodies of water with a “continuous surface connection” to “navigable waters,” like streams and lakes. The new definition also excludes groundwater and certain ditches and removes federal jurisdiction from interstate waters, which means waters aren’t protected just because they cross state lines.
In a fact sheet outlining the changes, the EPA states the rule supports landowners and shifts more control to states.
“It will cut red tape and provide clarity for American industry, energy producers, farmers, ranchers, developers, businesses, and landowners,” according to the EPA statement. “The proposal will also protect water quality by striking balance between federal and state authority, recognizing that states and tribes are best positioned to appropriately manage their local land and water resources.”
Nancy Stoner, senior attorney at the Environmental Law & Policy Center, said the potential loss of protections will have far-reaching consequences.
“Water flows downhill, so if you don't protect the headwaters, you're not going to be protecting even the perennial streams that they flow into,” Stoner said. “And wetlands are valuable. They are tremendously valuable for pollution filtration, for flood retention, for climate change mitigation, as well as for wildlife habitat. Everyone benefits from those values.”
The Environmental Law & Policy Center is one of dozens of organizations in the Great Lakes region that signed a letter opposing the new ruling.
Environmental concern
The Clean Water Act has regulated pollution in waterways and wetlands since the ‘70s. But the legislation is vague about exactly which waters count as protected, which has resulted in decades of legal challenges.
Stoner said a less specific definition means more water resources can be protected.
“If you went back to the members of Congress from 1972 and you said, ‘We just decided most of the waters in the United States are actually not protected by the Clean Water Act,’ I think they would be appalled,” she said. “Because they thought they were doing something that was really going to help ensure we had clean, safe water for generations to come.”
Crystal Brown is the executive director of the Clean Water Action Council of Northeast Wisconsin. She also signed the Great Lakes region letter opposing the ruling.
Brown grew up playing in the wetlands of northern Wisconsin. She said it’s hard for her to understand why the authors of this ruling would narrow the scope of the Clean Water Act.
"Our municipality has worked to restore some wetlands and native plantings to help mitigate flooding that's happening in the urban setting,” she said. “This (ruling) is totally counter to what we're trying to do here as a community.”
Much of Wisconsin’s wetlands will continue to be protected under state legislation, said Erin O’Brien, policy programs director with the Wisconsin Wetlands Association. Some states, including Illinois, Michigan and Minnesota, could lose federal protection for more than 95% of their wetlands, according to the EPA estimates.
O’Brien said the new outlined definition is hard to interpret. She worries it “maybe goes farther than what the Supreme Court required,” she said.
“I personally have a lot of concerns that it's not going to provide the clarity that a lot of landowners are asking for and need,” she said.
Robert Hirschfeld is the director of water policy at Prairie Rivers Network, a conservation non-profit based in Illinois. The organization submitted comments of their own in opposition to the new ruling, which dozens of Illinois organizations also signed.
"The response was immediate and, frankly, overwhelming in terms of the number of groups who wanted to sign on,” Hirschfeld said. “Because when it comes down to it, people want to protect their water.”
Landowner support
Farm advocacy groups, including the American Farm Bureau Federation, the American Soybean Association and the National Cattlemen’s Beef Association are supportive of the redefinition.
Courtney Briggs is a senior director of government affairs at the Farm Bureau. She said she’s heard from farmers who aren’t sure whether parts of their property are considered protected by the EPA. And she said the new ruling takes the pressure off landowners to prove parts of their property are not wetlands, and places it on the federal government to prove that it is protected.
“This means that if a farmer doesn't think that the features on their property meet the new definition of relatively permanent or continuous surface connection, then they can move forward and use their property as they see fit,” she said.
Briggs emphasized that landowners should do their due diligence to avoid the steep penalties that come with noncompliance. She expects more guidance to come about how farmers can implement the proposed changes.
Briggs said that even though federal protections may be shrinking, states could pass their own legislation. Wisconsin has some of the strongest protections for their waters and wetlands, and Illinois is expected to vote on wetlands protections in this year’s legislative session.
“States have the ability to go further than the federal government,” Briggs said. “This is where elections matter, and you know, they have every right to expand their waters of the state.”
The EPA has not said exactly when it will post the final rule, but Stoner with the Environmental Law & Policy Center said challenges to the rule in court are likely.
This story was produced in partnership with Harvest Public Media, a collaboration of public media newsrooms in the Midwest and Great Plains. It reports on food systems, agriculture and rural issues.
