The EPA Has Reopened Comments on Its Wetlands Rule, an Unusual Admission That It Is Stuck
Nearly a year after proposing a narrower definition of 'waters of the United States,' the agency is asking the public for more information. It has already received more than 220,000 comments.
The Environmental Protection Agency announced Friday that it is reopening the public record on its rewrite of the Clean Water Act's central definition, an unusual move that amounts to conceding the agency has not yet found a version of the rule it can defend.
The supplemental notice of proposed rulemaking was signed September 2 by Adam Telle, assistant secretary of the Army for civil works, and September 3 by EPA Administrator Lee Zeldin. It revises how the agencies propose to define "waters of the United States" — the phrase that determines which streams, wetlands and ponds fall under federal jurisdiction — in 33 CFR 328.3 and 40 CFR 120.2. The public will have 30 days to comment once the notice appears in the Federal Register.
Everything turns on the Supreme Court's 2023 decision in Sackett v. EPA, which held that the Clean Water Act reaches only wetlands with a continuous surface connection to a larger covered water body. That ruling stripped federal protection from a large share of the country's wetlands and left agencies to work out where the new line actually falls on the ground. The definition has been litigated for decades and has reached the Supreme Court twice since 2006.
Zeldin framed the effort as an attempt to end that churn. The agency's goal, he said, is "a durable WOTUS definition that follows the law and ends burdensome regulatory uncertainty," one that protects property owners while preserving water quality. The EPA argues the change will lift compliance costs from landowners, farmers, ranchers and businesses, and leave more water management to states and tribes.
Environmental groups read the proposal the other way. Jon Devine of the Natural Resources Defense Council said the rule as drafted would "virtually eliminate protection for freshwater wetlands." Wetlands filter pollutants, absorb floodwater and serve as nurseries for fish and waterfowl; once a wetland loses federal jurisdiction, whether it survives depends entirely on state law, and many states have none of consequence.
More than 220,000 comments have already been filed at earlier stages of the rulemaking. Asking for still more information, this late, is a signal that the agencies are weighing a broader set of options than the original proposal contemplated — and that they are building a record designed to survive the litigation that will follow whatever they finalize.
That litigation is a certainty. Agricultural groups have sued over past versions of the rule, environmental coalitions have sued over others, and state attorneys general have lined up on both sides. Whatever the EPA publishes will be in federal court within weeks of taking effect.
Originally reported by Associated Press.