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The U.S. Environmental Protection Agency recently proposed dialing back federal protections for many wetlands and streams across the country.
Environmental advocates say the change could lead to increased pollution and destruction of wetlands that provide valuable benefits, including flood protection and wildlife habitat.
The federal rule change wouldn’t have much effect in Minnesota, where state laws already protect most wetlands and streams.
“We do have state-level protections that are in place, and they will protect Minnesota in large part from the impacts if the federal rule that is being proposed moves forward,” said Margaret Levin, state director for the Sierra Club’s Northstar chapter.
The EPA’s proposal relates to the Clean Water Act, the landmark 1972 law that made it illegal to dump pollutants into the nation’s waterways without a permit.
However, there’s been ongoing debate about which waters the law covers. The debate hinges on a phrase the law uses, “waters of the United States,” but doesn’t define what it means.
“It's incredibly important to determine which waters are subject to the major rules and regulations under the Clean Water Act,” said Bonnie Keeler, director of the Water Resources Center at the University of Minnesota.
Because it's so consequential, that definition has flip-flopped back and forth over the past several decades due to rulings by federal agencies and the U.S. Supreme Court, Keeler said.
Democratic administrations have used a fairly broad definition that includes not just major rivers, but also tributaries and wetlands that affect downstream waters.
Republicans, on the other hand, have tried to limit the law’s scope. They're backed by farmers, industries and developers who say the previous definition of waters of the U.S. was too broad and infringed on landowners’ right to use their property.
In 2023, the U.S. Supreme Court weighed in on a case known as Sackett v. EPA. It centered on an Idaho couple who tried to build a home on property the EPA identified as a federal protected wetland.
The high court said wetlands need to have a "continuous surface connection" to other protected waterways to be federally protected.
Now, the Trump administration is proposing a new rule that would narrow the definition to align with the court’s decision.
“When it comes to the definition of ‘waters of the United States,’ EPA has an important responsibility to protect water resources while setting clear and practical rules of the road that accelerate economic growth and opportunity,” said EPA Administrator Zeldin in a Nov. 17 news release.
The EPA is seeking public comment on the proposal before issuing a final rule. It’s likely that opponents will challenge it in court.
Wetlands: ‘Kidneys for our lakes and rivers’
The proposed rule change could have far-reaching impacts nationally. It would remove federal protections for some streams that are ephemeral, meaning they only flow during certain times of the year.
Keeler said those ephemeral streams feed most of the tributaries that flow into the major rivers used for drinking water, recreation and navigation.
"So even if the major river bodies are still protected by the Clean Water Act, all of those headwater streams that feed into and support those major rivers would lose protection,” she said. “That's a significant impact."
Also, the proposed definition would shrink the number of wetlands that are protected under the Clean Water Act by tens of millions of acres, by some estimates.
Environmental groups are concerned about the proposal. They say wetlands play an important role in the environment, acting like natural sponges that store excess water, filter out pollutants and replenish groundwater aquifers.
"They provide flood control, they improve water quality and protect communities from pollution,” Levin said. “They're like the kidneys for our lakes and rivers."
Wetlands are also carbon "sinks," meaning they pull carbon dioxide from the atmosphere and store it in the soil, which helps combat climate change. They also provide critical habitat for wildlife and migratory birds.
In Minnesota, state protections apply
The proposed rule will have minimal impact in Minnesota, which passed the state Wetland Conservation Act more than three decades ago.
“It requires anyone that's proposing to drain or fill a wetland to first try to avoid impacting the wetland,” said Les Lemm, wetlands section manager at the Minnesota Board of Water and Soil Resources.
If they can’t, they must try to minimize, or as a last resort, replace it with another wetland of equal or greater value, Lemm said.
State officials said they’re still reviewing the EPA’s proposal. But whatever happens at the federal level, wetlands will largely remain protected in Minnesota.
“We don't anticipate seeing any significant changes,” Lemm said.
After the Supreme Court’s decision in the Sackett case, Minnesota state lawmakers last year closed some loopholes in state law that might have left certain waters unregulated, Lemm said.
Levin said without the added layer of federal protection, it will be more important than ever to enforce the state law to avoid further wetland losses.
“I think that also will make it even more important to help the public understand that wetlands are for people,” she said. “They benefit all of our communities.”
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