The EPA's Dangerous Retreat: How Narrowing Water Protections Threatens America's Environmental Future

The Regulatory Shift and Its Context

The Environmental Protection Agency, in coordination with the U.S. Army Corps of Engineers, has proposed significant changes to the definition of “Waters of the United States” (WOTUS) under the Clean Water Act. This proposed rulemaking represents a fundamental reinterpretation of federal water protection standards that will dramatically reduce the scope of waters subject to federal regulation and quality standards.

This regulatory shift follows the Supreme Court’s May 2023 decision in Sackett v. EPA, which ruled that wetlands must have a “continuous surface connection” to navigable waters to qualify for Clean Water Act protections. The Court’s decision overturned the previous “significant nexus” standard that had provided broader protection to wetlands and streams that significantly affect the chemical, physical, and biological integrity of navigable waters.

The new proposed rules would further define terms like “relatively permanent,” “continuous surface connection,” and “tributary” in ways that exclude many previously protected water bodies. Specifically, the rules establish that tributaries must connect to navigable waters via features with “consistent” and “predictable flow,” and wetlands must be “indistinguishable” from jurisdictional waters with that continuous surface connection. The rules also explicitly exclude permafrost wetlands, certain ditches, prior converted cropland, and waste treatment systems from protection.

The Stakeholder Perspectives

The proposed changes have drawn sharply divided reactions from various stakeholders. Agricultural and industry groups, including the American Farm Bureau Federation and National Cattlemen’s Beef Association, have celebrated the move as providing much-needed clarity and reducing regulatory burden. Farm Bureau President Zippy Duvall stated that the Supreme Court had clearly ruled that “the government overreached in its interpretation,” while cattle industry representative Buck Wehrbein praised the EPA for “finally fixing previous WOTUS rules” that had frustrated farmers and ranchers.

EPA Administrator Lee Zeldin characterized the previous broader interpretations as “weaponized” definitions that seized power from American landowners, claiming the new rules would “cut red tape” and accelerate economic prosperity while advancing “cooperative federalism” with states and tribes.

Conversely, environmental organizations have sounded alarm bells about the potential consequences. Environmental Defense Fund’s Will McDow called the rules “not based in science, difficult to implement in practice and will create a dangerous lack of clarity.” Food & Water Watch Legal Director Tarah Heinzen went further, stating the rule “flies in the face of science and commonsense” and will lead to increased pollution downstream while eliminating “bedrock protections” for vulnerable water systems.

The Constitutional and Environmental Implications

From a constitutional perspective, this regulatory shift raises profound questions about the balance between property rights and environmental protection. While the Fifth Amendment protects property rights, the Constitution also empowers the federal government to regulate interstate commerce and protect public resources. The Clean Water Act was established precisely because water pollution respects no political boundaries and requires federal oversight to prevent a “race to the bottom” where states compete by lowering environmental standards.

The proposed narrowing of WOTUS represents a fundamental misunderstanding of hydrological systems and ecological interdependence. Wetlands without continuous surface connections to navigable waters often provide critical functions in groundwater recharge, water filtration, and flood control. The scientific consensus clearly demonstrates that isolated wetlands and intermittent streams significantly affect downstream water quality—a reality the new rules dangerously ignore.

This regulatory retreat also threatens the principle of cooperative federalism that Administrator Zeldin claims to advance. By creating regulatory gaps that states may struggle to fill, the rules could lead to fragmented protection where waters crossing state boundaries receive inconsistent treatment. The Clean Water Act’s federal framework was designed precisely to prevent such fragmentation and ensure minimum protection standards across state lines.

The Economic and Public Health Consequences

The economic argument for deregulation fundamentally misunderstands the relationship between environmental protection and economic prosperity. While reducing regulatory requirements may provide short-term cost savings for certain industries, the long-term costs of degraded water quality will inevitably fall on taxpayers and communities. The functions that wetlands provide—flood control, water purification, groundwater recharge—have enormous economic value that far exceeds the compliance costs opponents highlight.

When wetlands are destroyed or degraded, communities must build expensive water treatment facilities, invest in flood control infrastructure, and bear healthcare costs from waterborne diseases and chemical exposures. The notion that environmental protection stifles economic growth represents a false dichotomy—sustainable development requires recognizing that economic activity depends on healthy ecosystems.

From a public health perspective, the proposed rules represent a dangerous step backward. Millions of Americans depend on drinking water sources that originate in or flow through wetlands and streams that would lose protection under the new definition. The removal of safeguards increases the risk of contamination from agricultural runoff, industrial discharge, and development activities—threats that disproportionately affect vulnerable communities with limited resources to address water quality issues.

The Philosophical and Democratic Concerns

This regulatory change reflects a broader philosophical shift away from environmental stewardship and toward short-term exploitation of natural resources. The concept that landowners should have unlimited rights to modify wetlands and waterways on their property ignores the fundamental reality that water resources are shared public goods. The constitutional framework recognizes that property rights exist within a social context where individual actions can harm community interests.

The democratic process is also undermined when regulatory changes ignore scientific consensus and public sentiment about environmental protection. Numerous polls show strong bipartisan support for clean water protections, yet this rulemaking appears responsive primarily to industry interests rather than public welfare. The 45-day comment period provides insufficient time for meaningful public engagement on such a consequential regulatory change.

Furthermore, the characterization of previous regulations as “weaponized” represents dangerous rhetoric that undermines legitimate environmental governance. Federal agencies have a constitutional mandate to protect public resources, and characterizing their actions as weapons against citizens polarizes discussion and prevents reasoned debate about appropriate balance between property rights and environmental protection.

The Path Forward

As a nation committed to liberty and justice, we must recognize that true freedom includes freedom from environmental degradation that threatens health, safety, and quality of life. The proposed WOTUS rules represent a betrayal of our constitutional responsibility to protect common resources for current and future generations.

Congress should consider legislative action to clarify the scope of Clean Water Act protections in ways that reflect scientific understanding of hydrological connectivity. States should prepare to strengthen their own water protection laws to fill the gaps created by federal retreat. Citizens must engage in the comment process and demand that their representatives protect water resources rather than sacrifice them for narrow interests.

The Sackett decision and its implementation through these rules represent a pivotal moment in American environmental policy. We can either accept the degradation of our water resources for short-term convenience, or recommit to the principle that clean water is a fundamental right worthy of robust protection. Our constitutional framework demands the latter approach—one that balances individual liberty with collective responsibility and recognizes that true prosperity depends on environmental health.

In the words of the Clean Water Act’s original purpose, we must “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” This noble goal requires protecting all waters that contribute to that integrity, not just those with continuous surface connections to navigable waters. Our democracy, our freedom, and our future depend on getting this balance right.