Eighty-eight environmental organizations warned EPA this fall that the agency's Sept. 9 supplemental "waters of the U.S." proposal would strip federal protection from 81 percent of wetlands acreage in the contiguous United States. The American Farm Bureau Federation told regulators the rule follows the Supreme Court faithfully. Comment letters from both coalitions arrived during a 30-day window that has now closed.

EPA and the Army Corps of Engineers drafted the rule to implement the Supreme Court's 2023 Sackett decision, which narrowed the Clean Water Act and reset federal jurisdiction over the nation's streams.

What does the proposal change?

The agencies proposed defining "relatively permanent" waters as perennial flows. Streams could keep federal coverage if they dry for no more than 30 consecutive days from ordinary events such as low tide. Drought and other anomalous events would not strip a water body of its federal status.

The Farm Bureau called the thresholds reasonable bright lines for regulators and farmers. "The proposal's bright line thresholds are reasonable ways to decide when drying is frequent or prolonged enough to disqualify a waterbody," AFBF wrote in its comments. The Waters Advocacy Coalition, a broader industry group that includes AFBF, called the test essential for permitting infrastructure while preserving the states' role in managing non-federal waters.

What do environmental groups object to?

Eighty-eight groups signed a coalition response led by the Southern Environmental Law Center and the National Wildlife Federation. The coalition pointed to the U.S. Geological Survey's National Hydrology Dataset for evidence of the stakes. That dataset shows 1.3 million miles of perennial streams and 3.5 million miles of intermittent streams nationwide, nearly three times the perennial total and 55 percent of mapped stream miles. All of those would lose federal coverage under the agencies' proposal.

The coalition also cited the agencies' regulatory impact analysis from the original rule. That analysis found only 19 percent of wetlands acreage in the contiguous United States may carry surface water. The coalition concluded that 81 percent of wetlands could lose federal protection on that basis alone, without any consideration of downstream drinking water, fisheries or flood control.

"By prioritizing the holy grail of 'a bright line' over the congressionally mandated objective of the Clean Water Act, the agencies would sacrifice the nation's wetlands and the benefits they provide: filtering pollutants, protecting water quality, absorbing stormwater, abating floods, preserving fisheries, and providing wildlife habitat for commercial and non-commercial species," the coalition wrote. The 30-day standard also ignores regional climate variation, the groups added, and the arid West would lose the most coverage.

Can states fill the gap?

State agencies lack the resources to oversee waters stripped of federal protection, the environmental coalition argued. "The agencies cannot assume that states will be able to fill the gap and adequately regulate non-jurisdictional waters," the groups wrote.

The Farm Bureau read the Sackett ruling differently, arguing the Sackett majority adopted the Rapanos plurality's relatively permanent standard as binding law and tying federal jurisdiction to features ordinary people call streams, rivers, lakes and oceans. Justice Antonin Scalia wrote in Rapanos that the act covers only those "relatively permanent, standing or continuously flowing bodies of water."

EPA and the Corps will now weigh public comments as they draft a final WOTUS rule. The decision will shape permitting timelines for drainage work, stream crossings and wetland restoration on farms across the country in coming rulemakings.