Waters that dry up for more than 30 days a year could lose federal protections under a new proposal from the Environmental Protection Agency.
The move comes as the Trump administration works to redefine which bodies of water are regulated under the Clean Water Act and would require federal permits for activities like dumping pollution.
The Biden administration excluded a majority of the country’s wetlands from protections after a 2023 Supreme Court decision, Sackett v. EPA, narrowed the definition of waters under federal jurisdiction. That decision said the federal government could only regulate wetlands with a continuous surface connection to a “relatively permanent” body of water.
Last winter, the Trump administration proposed going further, removing protections for waters based on whether they cross state lines, and only applying protections to waters that flow at least during the “wet season.”
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In the document released Friday, the EPA is proposing an even stricter definition. A water body would only be “relatively permanent” if it had standing or flowing water every day of the year, with limited exceptions.
“The Trump Administration’s initial proposal placed vast swaths of federal waters at risk of losing their federal protections, and this new proposal enormously increases that risk,” said Maggie Nivison, a senior attorney with the Conservation Law Foundation.
In the proposal, the EPA said it could not calculate how many miles of streams would lose federal protections, though the agency estimated that most of the nation’s roughly 3.5 million miles of “intermittent streams” would not be federally protected.
Most of the impact, the agency said, would be in regions where intermittent streams are important parts of the water system. The arid West would be expected to see a “significant reduction” in waters under federal jurisdiction.
EPA Administrator Lee Zeldin said the agency’s goal is a “durable” definition of “waters of the United States” that “follows the law and ends burdensome regulatory uncertainty.”
In the past, Zeldin has emphasized the importance of saving landowners from having to hire lawyers and consultants to understand whether federally protected waters are on their property.
Under Friday’s proposal, waters would not lose their federal protection if they dried up for a short period of time — 30 days in any given year. But if a stream or river dried up for longer than 30 days, it would no longer be considered a “water of the United States.”
Extreme or exceptional droughts would count as extenuating circumstances, but the supplemental proposal would kick water bodies out of federal jurisdiction after five continuous years of drought.
Nícola Ulibarrí, an urban planning and public policy professor at the University of California, Irvine, said the impact of the rule could be exacerbated by more drought as global temperatures heat up. That could affect not only small streams, but also major rivers.
“We’re starting to see parts of the Rio Grande drying out and no longer having continuously flowing water on a somewhat more regular basis,” she said. “Right now it would still meet the federal standard, but that could change, and that’s a river that supplies drinking water to many, many people.”
The agency said it could not quantify potential savings from easing permitting and compliance if fewer waters were protected — though it estimated that both would increase with this latest proposal.
In the supplemental proposal, the EPA argues that the change would simplify the implementation of the federal water rule, because members of the public could see a body of water drying up and make a determination based on observations, instead of requiring professional consultation.
But Nivison, with the Conservation Law Foundation, said determining whether individual bodies of water are running or not is complicated.
“Distinguishing between a damp creek bed and a dry creek bed is still a huge challenge for any layperson,” she said.
Waters that aren’t under federal protection are under state jurisdiction. State regulators are often resource-strained, or have more permissive systems than the federal government, Nivision said.
That could lead to more pollution in waters across the country. Requirements for disclosing which pollutants are flowing into bodies of water would also be dropped if they no longer qualify under federal jurisdiction, creating an “information blackout,” she said.
“We’re tying our future selves’ hands behind our back,” Nivison said. “We’re going to be facing these water quality problems without even having access to the information as to what’s being added to these waters.”
After the supplemental notice is posted in the Federal Register, federal agencies will accept public comment for 30 days.
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