Dive Brief:

• The U.S. EPA's latest proposed definition of "waters of the United States" is likely to make development of waste facilities easier, according to some experts. 
• The agency's proposal includes several clarifications that it says better aligns federal Clean Water Act enforcement with recent Supreme Court rulings. That includes an expanded definition of “excluded waste treatment system” that covers more wastewater operations.
• The comment period for the rule opened on Nov. 20 and is set to expire on Jan. 5. Some groups, including the Association of Clean Water Administrators and the Center for Biological Diversity, have asked EPA to extend the comment period since it overlaps with several holidays. The agency has so far not granted that request. 

Dive Insight:

The debate over WOTUS has led to several redefinitions and court cases in recent years, as facility owners and operators tussle with the federal government over whether their projects may impact federal waters. If they do, they are subject to the Clean Water Act, which necessitates an additional permitting process.

The Biden administration released an update to its WOTUS definition in 2023 after the Supreme Court case Sackett vs. Environmental Protection Agency narrowed the amount of wetlands covered under the regulation.

But in March, the Trump administration announced it would once again revisit the term to add clarity and "ensure that a revised definition follows the law, reduces red-tape, cuts overall permitting costs, and lowers the cost of doing business in communities across the country while protecting the nation’s navigable waters from pollution.”

This is the EPA's narrowest interpretation yet of WOTUS since the Sackett ruling in 2023. Damien Schiff, a senior attorney at Pacific Legal Foundation who argued the case on behalf of the Idaho couple who sued the EPA in that case, said the administration's proposal is "not perfect" but praised it for clarifying that only a portion of a wetland area indistinguishable from other federal waters is covered under the rule. 

"This is a significant improvement over the Biden administration’s approach," Schiff said.

The proposal's reduced scope could also make the permitting of waste facilities easier, said Erika Spanton, principal at Beveridge & Diamond. She noted that fewer landfills will likely need a Clean Water Act permit under the proposal, clearing the way for landfill siting and expansion.

Meanwhile, environmental groups take issue with the proposal's reduced coverage and argue that it still leaves a lot open to interpretation.

"It both cuts so many wetlands and streams from protection, but also is pretty vague in the way that it does so," Jonathan Dinerstein, environmental justice staff attorney at Lawyers for Good Government, said. "I think it's going to turn the clock back, in a really negative way."

In particular, Dinerstein notes that the rule said only streams that flow continuously during their "wet season" should count, yet the definition of a wet season varies by region. In some areas, streams also achieve their highest flows outside of their wet season due to snow melt.

The new proposal would also no longer cover all of a stream if it has a break in its flow in some cases, but Dinerstein said identifying those cases requires a level of mapping that doesn't exist everywhere.

The rule will also overlap with state and local water protections, which have become a patchwork amid continued confusion over WOTUS. As of May, 24 states plus Washington, D.C. and U.S. territories were implementing the Biden-era definition of WOTUS while remaining states were implementing an older definition due to a pending court challenge.

The net result of the proposal, if implemented, would be to roll back protections in those states that opposed the Biden-era definition or lack additional protections, according to Ryan Hathaway, director of Lawyers for Good Government's environmental and climate justice program.

"All of the states with weak or no wetland permitting rules right now, and whose ecology has ephemeral streams and intermittent groundwater-connected wetlands, it opens the door for a lot of those landfills to expand without any oversight," Hathaway said.

The industry trade groups National Waste & Recycling Association and Solid Waste Association of North America declined to comment on the proposal.