Clean Water Act: WOTUS

On Nov. 17, the Environmental Protection Agency released a new rule that guts what remains of federal wetlands protections.

But it doesn’t stop there, according to Neuse Riverkeeper Samantha Krop.

“This rule will allow more pollution and destruction of waterways than any previous rule in the past 50 years — since the Clean Water Act became law,” Samantha said. “Without protections, these waterways will suffer from increased pollution and destruction, which will threaten the quality of our drinking water, recreational resources, the health of our fisheries and all aquatic life.”

The proposed rule follows the 2023 U.S. Supreme Court decision in Sackett v. EPA — its stated purpose is to bring federal law into compliance with that decision, but for environmentalists across the country, the “Polluted Water Rule” has the potential to go much further in removing protections included in the nation’s bedrock law to protect clean water.

“Coupled with the new attempt to weaken the Endangered Species Act, it’s clear we can no longer depend on federal laws to protect our waterways and wildlife,” said Sound Rivers Executive Director Heather Deck. “It’s now up to the states and local governments to ensure we have healthy rivers, clean sources of drinking water and healthy and vibrant fisheries and wildlife habitat.”

This, however, will be challenging: not only has North Carolina’s General Assembly consistently underfunded and understaffed the North Carolina Department of Environmental Quality in recent years, in 2023, it jettisoned protections for wetlands and NC waters — written into the state Constitution in 1972 — to tie the state’s protections directly to federal law. That degradation of state protections then, will be reflected in further degradation if the new rule is implemented, according to Heather.

“It basically leaves most headwaters and intermittent streams with no protection and opens wetlands to exploitation,” she said. “It’s astonishing, that in 2025, we’re still having to convince politicians about the importance of protecting wetlands and headwater areas. Why is this still even a discussion? This is a polluter’s dream bill that will result in greater flooding and contamination for communities — raising costs for all of us so polluters can make a buck.”

Some of dangers of the EPA’s proposed “Waters of the United States” rule are highlighted here.

In the new rule, federal jurisdiction over waters of the United States will focus solely on “relatively permanent, standing or continuously flowing bodies of water — such as streams, oceans, rivers, and lakes — and wetlands that are connected and indistinguishable from such waterbodies.”

Changes a Key Definition

“Relatively permanent” would apply only to waters that are standing or continuously flowing year-round, or at least during the “wet season.”

“They don’t define the ‘wet season,’ so it’s not clear what this will mean here and throughout the Southeast. During our dry times, regardless of season, many of our small tributaries do not have water in them.”

Removes Protections for Wetlands and Tributaries

The new rule requires a wetland to abut a waterbody that falls into one of the following categories:  relatively permanent, standing water or continuously flowing. For a wetland to qualify for federal jurisdiction, it must also have surface water at least during the “wet season.”

A tributary will be protected only if it is deemed a “relatively permanent” body of water.

“We know — and science clearly shows — that protecting headwater streams and headwater wetlands is essential to protecting downstream water quality, provide healthy food sources for aquatic fish and organisms and provide flood protection. This would eliminate protections, and could likely mean that a developer could literally fill in ephemeral and intermittent stream channels. That would be catastrophic.”

Removes A Key Water of the United States

The new rule underscores that groundwater will not be considered a Water of the United States, which remove federal jurisdiction for polluted groundwater.

“So, a polluter could contaminate groundwater even if it then upwells into a surface waterbody, which happens all the time. The only thing stopping this would be state laws. It also means that wetlands that are wet due to groundwater upwelling, for example, pocosins, would no longer be protected.”

Shifts Jurisdiction to the States

The rule shifts federal jurisdiction to the states, claiming states and tribes are “best positioned to manage their local land and water resources.” On the surface, the shift may appear sensible, but it’s far more complicated.

“What it will do is gut federal law and leave it up to the states to figure out, which is a trainwreck because most waterways do not follow state lines. In fact, most North Carolina waterways impact more than one state. This opens up the door to one state polluting another state’s waterways based on the strength of any given state’s environmental laws.”