On National Agriculture Day in March, newly-appointed Environmental Protection Agency administrator Lee Zeldin laid out a lofty goal during a visit to a farm outside of St. Louis.
“I would love to see, ‘I love EPA, I love Trump EPA,’ t-shirts on everybody,” Zeldin joked.
The room of Missouri agriculture leaders echoed with laughter at the idea of farmers wearing the shirts.
“But we have to earn that trust,” Zeldin continued. “We have to earn that respect.”
The round-table discussion covered many agriculture issues that overlap with the EPA, like ethanol fuel standards and pesticide approvals. But one issue was at the center of Zeldin’s effort to win over farmers — rewriting the rule that defines which bodies of water are protected under the Clean Water Act.
Waters of the U.S.
The Clean Water Act is the federal policy that has regulated water pollution in the U.S. since 1972. That legislation said that federal officials had jurisdiction over “navigable waters,” defined in the act as the “waters of the United States.”
But the act didn’t spell out what “waters of the United States” meant. Instead, it gave the EPA and the Department of the Army the power to make that definition.
That ambiguity has led to years of court fights over which waters are protected, with multiple cases making it to the Supreme Court and the definition evolving each time.
“That's been the question, ‘What does ‘waters of the U.S.’ mean?’” said Brent Haden, a Missouri-based agricultural attorney at Haden and Colbert. “And that's been the subject of significant litigation going all the way back to the ‘70s.”
The Supreme Court weighed in again in 2023, in the case of Sackett v. Environmental Protection Agency. The case focused on a dispute over wetlands and a family’s land in Idaho.
The EPA said Michael and Chantell Sacketts’ lot contained wetlands that were “waters of the U.S.” and threatened penalties of over $40,000 per day after the family began work to build a home there. The Sacketts sued, saying that their property did not fall under “waters of the U.S.” and the Supreme Court agreed with them.
After that decision, the EPA again rewrote the rule, but Zeldin said the revision hasn’t gone far enough.
“One word, ‘Sackett.’ It is a clear, simple, prescriptive definition,” Zeldin said. “It is clear guidance from the United States Supreme Court. We should follow it. We should honor it. In that definition lies the answer, the solution.”
Now, under Zeldin, the EPA is again seeking to rewrite the rule and has submitted a notice of a proposed rule to the federal register.
Frustration for farmers
The ever-changing definition can make it difficult for farmers to know whether their land falls under the Clean Water Act, said Missouri Farm Bureau president Garrett Hawkins.
He said for many farmers, the term “waters of the U.S.” has also become synonymous with possible regulation of ditches on family farms.
“What our concern all along has been is this creep away from not just clean water, but the creep into trying to regulate activities on dry land,” said Hawkins, who is also a farmer. “And truly, that's why we have long said that this is more of a private property rights grab because of that encroachment of regulation.”
Iowa Environmental Council general counsel Michael Schmidt agrees that the changing definitions have created confusion, but he also said the policy is often misrepresented to say it regulates every puddle on a farm.
“It's not helpful to have this back and forth, and it's also not helpful to have the overstatements of what this impacts and how much will be regulated by it,” Schmidt said
The changing definition and lawsuits have led to a situation where half the country is operating under a pre-2015 definition of waters of the U.S., while the other half are following the 2023 definition.
“We shouldn't have a map of the country that has two different colors, you know, half of the country following one definition, and another half of the country following another definition,” Zeldin said.
But Nancy Stoner, senior attorney at the Environmental Law and Policy Center, said Zeldin is doing the very thing he is criticizing. Stoner was the EPA’s acting assistant administrator for water during the Obama administration.
“It's true that the rules have changed many times, and the definition of ‘waters of the U.S.’ have changed many times,” Stoner said. “That's true. I don't think promulgating a new rule is the way to address that concern.”
Instead, Stoner said the EPA should be implementing and enforcing the current law to protect waters from pollution.
Environmental concerns
The Supreme Court’s Sackett decision left a big hole in water protections across the country, Stoner said, by deciding waters that were previously protected were no longer eligible.
The decision said wetlands would only count for protection if they had a “continuous surface connection” with adjacent streams, oceans, rivers and lakes that qualify as “waters of the U.S.”
Stoner said the definition has been moving in the wrong direction in recent years, leaving more water vulnerable.
“The protections have been shrinking, and the Trump administration proposals would shrink them even more,” Stoner said. “That means more pollution into the waterways, which nobody wants.”
Protecting fewer wetlands is especially harmful in the Midwest, said Schmidt, with the Iowa Environmental Council.
“Iowa, for example, has lost about 98 or 99% of its wetlands, but wetlands provide significant value in terms of preventing flooding or reducing flooding, they provide water treatment, they provide habitat,” Schmidt said. “An extremely narrow interpretation of what's protected puts all those benefits at risk.”
Stoner said some of the confusion comes from the nature of water itself, which is often connected above and below ground and sees high and low periods. But ultimately, she said this is about making sure people have clean water.
“Trying to decide which water should be federally protected has been difficult to do, but the basic science shows that you can't protect large waterways, you can't protect rivers like the Mississippi River, unless you protect the tributaries that flow into it,” Stoner said.
Durability
Zeldin said he wants this newly rewritten rule to put an end to the ping-ponging court cases.
“The goal is November 2028, November 2032, whoever wins a presidential election of the future, there's this definition that was written 100% consistent with Sackett, there's no reason to change it ever again,” Zeldin said.
But a truly permanent definition of waters of the U.S. could likely only come from Congress, Hawkins said. Ultimately, he said farmers want both clean water and clear rules.
“What we've been missing since 1972 are the bright lines as to what is a [water of the U.S.] and what is not,” he said.
The EPA is seeking feedback from the public on the “waters of the U.S.” definition. Written comments can be submitted until April 23. There will also be public listening sessions in April and May.
This story was produced in partnership with Harvest Public Media, a collaboration of public media newsrooms in the Midwest. It reports on food systems, agriculture and rural issues.
