The Trump Administration Wants to Gut The Clean Water Act

Earlier this month, the Trump administration moved to narrow the scope of the Clean Water Act and exempt certain types of waterways from the law’s protections. Environmentalists say the change, if adopted, would increase flood risks and water pollution across the United States.

The move came in the form of a proposed EPA regulation to redefine “waters of the United States (WOTUS),” the legal concept underpinning the Clean Water Act’s requirements. Under the proposal, waterways would have to meet additional, stricter requirements in order to qualify for the Clean Water Act’s protections, and some would be excluded outright. The proposal was published in the Federal Register on November 20, but hasn’t been finalized or implemented.

Clean water advocates and environmental groups are already ringing alarm bells, as the new rule would represent a significant deregulation of water pollution in America.

“It’s way less protective [than current regulations], and it’s going to lead to a lot of really bad side effects when it comes to water quality and flood risk,” Haley Gentry, assistant director at the Tulane Institute on Water Resources Law & Policy, tells Sentient.

The Clean Water Act

The Clean Water Act is a 1972 law aimed primarily at reducing water pollution. It requires the EPA to set pollution limits, establish water quality standards and develop permitting regimes for facilities that discharge their waste into waterways. The law also requires states to implement plans for measuring and maintaining water quality.

Under the Clean Water Act, it’s illegal to discharge any pollutant from a point source into waters of the U.S. without a permit from the EPA. A “point source” is any distinct outlet that releases pollutants. This includes intentional waste discharge locations like drainage pipes and ditches, as well as inadvertent sources of pollution like overflows and leaks from sewage systems.

Many industries consist of facilities that are prolific point-source dischargers and are subject to Clean Water Act regulations. Some of the most prominent ones include oil and gas companies, home builders, mining operations and factory farms, the latter of which are the largest source of water pollution in the country.

But what exactly qualifies as a “water of the US?” That question has been at the center of debates and litigation regarding the Clean Water Act ever since it was enacted, and the answer is crucial to determining which waterways are actually subject to the law’s protections. The original law doesn’t define the term, and as a result, “waters of the U.S.” has been defined and redefined many times over the decades by various presidential administrations and courts.

One such redefinition came in 2020 as the result of Sackett v. EPA, a landmark Supreme Court case in which the court ruled that the Clean Water Act only applied to streams, oceans, rivers and lakes. Other waters, such as wetlands, were covered only if they had continuous or standing flow or a surface connection to those waters, or if they significantly affected the integrity of downstream navigable, interstate or territorial waters. In response to this ruling, the EPA in 2023 revised its own definition of “waters of the U.S.” to conform with the Sackett ruling.

The new proposal from the Trump administration will further narrow which waters qualify under the Clean Water Act and replace the 2023 regulation. It will also require other types of waterways, like streams, to meet more stringent definitions in order to be covered by the law.

Regulatory Implications

Hydrology is extraordinarily complex, and so are the new regulations, which span 49 pages and are full of technical jargon like “channelized non-jurisdictional surface water feature” and “non-relatively permanent flow durations.” But in essence, the law places new limits on which types of waterways are considered waters of the U.S. and, as such, are subject to the Clean Water Act’s regulations.

One significant element of the proposed rule is the addition of a vaguely defined “wet season,” under which many waterways will only be eligible for Clean Water Act protections if they’re continuously flowing during the wet season.

This immediately presents several issues. “Wet season” isn’t a defined legal term; it can differ wildly from region to region, says Gentry, and is often inconsistent even within one place. As a result, she says that “there’s no definition that can be applied nationwide.”

“Precipitation patterns and drought patterns are clearly changing on a yearly basis,” Gentry says. “The Mississippi River basin has very dramatically different seasons, even though the precipitation overall may be about the same. You know, we’re seeing longer dry seasons and shorter wet seasons. So there’s still no clarity on what would be covered.”

Royal Gardner, director of the Institute for Biodiversity Law and Policy at Stetson University College of Law and author of the book Waters of the United States, points out an additional problem with the new definition. Streams sometimes begin flowing midway into the wet season (however that’s defined), and continue flowing into the next season. As a result, they might be continuously flowing for months on end, but because that flow doesn’t take place solely during the ill-defined “wet season,” they wouldn’t be covered.

“You have a number of different stream systems where there’s a lag time,” Gardner tells Sentient. When rain falls, often it is absorbed into the soil before making its way to the surface and becoming a stream. This process is called the hydrologic response, and it can take a bit of time depending on soil conditions and other environmental factors.

By limiting which types of non-wetland waters qualify for protections, this new regulation will further restrict the number of wetlands that qualify, Gardner points out.

“If a stream is no longer jurisdictional, then the wetland adjacent to the stream is not jurisdictional, right?” Gardner says.

In addition to the “wet season” provision, the proposed regulation also heightens the inclusion criteria for certain other entities that are typically covered by Clean Water Act protections. Waste treatment facilities, ditches and prior converted cropland (typically former wetlands now drained and used for agriculture) will all have to meet new, more specific requirements in order to qualify for protection.

Finally, the new regulation clarifies that groundwater isn’t subject to Clean Water Act regulations — a relatively inconsequential change, as the law hasn’t typically been applied to groundwater anyway — and removes language under which interstate waters were automatically covered by the law.

What Impacts Will These New Regulations Have?

Reducing the number of waterways that are subject to Clean Water Act protections means there will be more water pollution across the country. Water pollution can harm or destroy plants, animals, other living things and even natural ecosystems. According to the World Health Organization, over half a million people die every year from drinking microbiologically contaminated water.

The new rules will also increase the risks of flooding, Gentry says. Wetlands play an important role in flood prevention, with one study estimating that each hectare of wetlands in the U.S. prevents between $1,840 and $8,000 of flood damage. They are also important for mitigating climate change, as wetlands are powerful carbon sinks. Eliminating protections for wetlands makes them more susceptible to long-term degradation, thus reducing their ability to prevent floods and store carbon.

“You’re going to be cutting off so many wetlands that are needed for flood control and setbacks from major waterways,” Gentry says.

By increasing the risk of flooding in certain areas, this new rule could result in some Americans paying more for flood insurance, Gentry adds.

“I think that this rule just overlooks the interconnected nature of our water resources,” Gentry says.

The Bottom Line

Regulations have to go through a lengthy process before being implemented, and these new rules haven’t been finalized yet, let alone enacted. They’ll be open to public comment until January 5th, 2026, after which point the EPA — assuming it wants to move forward with them — will release a finalized version of the new regulatory text. That final version will be posted for at least 30 days before being enacted, per federal law.

Gardner says that the language of the proposed rule suggests that the EPA will be taking the public comments into account before it crafts the final version of the new regulations.

“The agency is expressly soliciting comments on a variety of different approaches that it may adopt in a final rule,” Gardner says. “They put out a proposal, but they have also clearly signaled they’re open to other options, and so the comments that they will receive I think will be very important.”

He adds, however, that he “[doesn’t] expect it to become more protective” than it already is.

This new proposal is a stark reminder of how much latitude presidential administrations have in interpreting regulations. Although the Supreme Court did significantly limit the Clean Water Act’s scope in the Sackett decision, the EPA’s interpretation of that ruling under the Biden administration was significantly different, and more protective of waterways, than the new proposal is.

This is something of a double-edged sword. Often it’s easier to deregulate than it is to regulate, but in this case, although deregulatory in spirit, it’s technically a new regulation that the Trump administration is proposing. The next president could issue a new one that supersedes it, just the way this one supersedes Biden’s version of the same regulation. Yes, it’s easy for a president like Donald Trump to slice and dice clean water regulations, and the consequences are far-reaching — but it’ll be just as easy for another president to resurrect those protections.