EPA Proposes Rule to Limit the Key Waters Definitions – Maryland Association of Counties

Report on the Proposed Revision to the “Waters of the United States” (WOTUS) Definition and its Implications for Sustainable Development Goals

1.0 Introduction

The U.S. Environmental Protection Agency (EPA) has introduced a proposed rule to amend the definition of “waters of the United States” (WOTUS) under the Clean Water Act. This action, prompted by the 2023 Supreme Court decision in Sackett v. EPA, seeks to narrow the scope of federally protected water bodies. The proposed changes have significant implications for the advancement of several United Nations Sustainable Development Goals (SDGs), most notably SDG 6 (Clean Water and Sanitation), SDG 14 (Life Below Water), SDG 15 (Life on Land), and SDG 16 (Peace, Justice, and Strong Institutions).

2.0 Background: Judicial and Legislative Context

2.1 The Sackett v. EPA Supreme Court Decision

The catalyst for this regulatory revision is the Supreme Court’s 2023 ruling, which stipulated that wetlands fall under the jurisdiction of the Clean Water Act only if they possess a “continuous surface connection” to larger, traditionally regulated waters. This decision fundamentally altered the legal framework for water protection, directly impacting the United States’ capacity to meet targets associated with SDG 6 and SDG 15 concerning the protection of water-related ecosystems.

2.2 State-Level Institutional Response: The Maryland Case

In response to the federal judicial shift, state governments are developing legislative countermeasures to maintain water quality standards. Maryland’s General Assembly, for instance, passed the Clean Water Justice Act of 2024. This legislation enhances citizen oversight and legal recourse for water pollution incidents, representing a localized effort to strengthen environmental governance and ensure access to justice, in alignment with the principles of SDG 16. The Act addresses the regulatory gap created by the Sackett decision, ensuring that state-level mechanisms contribute to the goals of SDG 6.

3.0 Analysis of the Proposed EPA Rule in Relation to SDGs

The proposed rule introduces several key changes that directly influence progress toward environmental sustainability targets.

3.1 Redefining Jurisdictional Waters and Impact on SDG 6

The rule aims to provide a more limited definition of federally protected waters, which could impede efforts under SDG Target 6.3 to improve ambient water quality by reducing pollution.

• Definitional Changes: The proposal provides narrow definitions for terms such as “relatively permanent” and “continuous surface connection,” which will be used to determine federal jurisdiction.
• Tributary Requirements: Jurisdictional tributaries must demonstrate a consistent and predictable flow into traditional navigable waters, potentially excluding ephemeral and intermittent streams that are vital for watershed health.
• Wetland Connection: The rule reinforces that wetlands must be “indistinguishable” from jurisdictional waters via a continuous surface connection. This could remove protections for many wetlands that provide essential ecosystem services, such as water filtration and flood control, which are critical for achieving SDG 6 and SDG 15.

3.2 Exclusions and Impacts on SDG 14 and SDG 15

The proposal clarifies and adds exclusions that could negatively affect biodiversity and ecosystem health, undermining SDG 14 (Life Below Water) and SDG 15 (Life on Land).

1. New Groundwater Exclusion: A new exclusion for groundwater is added, detaching its protection from surface water regulations despite their hydrological connection.
2. Preserved Exclusions: Exclusions for certain ditches, prior converted cropland, and waste treatment systems are maintained and clarified.
3. Ecosystem Consequences: By limiting the scope of protected wetlands and tributaries, the rule may increase the flow of pollutants into larger water bodies, ultimately harming downstream coastal and marine ecosystems (SDG 14.1) and degrading terrestrial and inland freshwater habitats (SDG 15.1).

3.3 Governance and State Authority (SDG 16)

The rule purports to strengthen state and tribal authority by providing clearer federal guidelines. While this may support decentralized resource management, it also shifts the primary responsibility for protecting non-jurisdictional waters to state and tribal governments. This creates a potential for inconsistent protection levels across the country, highlighting the importance of robust and effective state-level institutions as envisioned in SDG 16.

4.0 Forward Outlook

The introduction of this proposed rule signals a potential reduction in federal environmental oversight. This trend is expected to catalyze further state-level legislative action to create “backstops” against the weakening of federal protections. The ongoing debate and eventual finalization of the WOTUS rule will remain a critical factor in the United States’ ability to make meaningful progress on its commitments to the Sustainable Development Goals, particularly those related to clean water, biodiversity, and effective environmental governance.

Analysis of Sustainable Development Goals (SDGs) in the Article

1. Which SDGs are addressed or connected to the issues highlighted in the article?

The article on the EPA’s proposed rule for the definition of “waters of the United States” (WOTUS) connects to several Sustainable Development Goals, primarily focusing on environmental protection, water management, and legal frameworks.

• SDG 6: Clean Water and Sanitation: This is the most directly relevant SDG. The entire article revolves around the Clean Water Act and the legal definition of which water bodies are protected from pollution. The debate over WOTUS directly impacts the quality of water resources.
• SDG 14: Life Below Water: The regulation of inland waters, such as tributaries and wetlands, has a direct impact on the health of downstream marine ecosystems. Pollution and degradation of these freshwater sources eventually flow to the oceans, affecting marine life.
• SDG 15: Life on Land: The article explicitly discusses the regulation of wetlands, which are critical terrestrial and freshwater ecosystems. The Supreme Court’s Sackett decision and the proposed EPA rule directly alter the scope of protection for these habitats, which are vital for biodiversity.
• SDG 16: Peace, Justice and Strong Institutions: The article details the functioning of legal and governmental institutions. It covers a Supreme Court decision, a federal agency’s (EPA) rulemaking process, and a state legislature’s response (Maryland’s Clean Water Justice Act), all of which relate to creating effective, accountable institutions and ensuring the rule of law.

2. What specific targets under those SDGs can be identified based on the article’s content?

Based on the issues discussed, several specific SDG targets can be identified:

1. Target 6.3: Improve water quality by reducing pollution. The article’s central theme is the scope of the Clean Water Act, a law designed to prevent pollution. The proposed rule, by defining which waters are federally protected, directly influences efforts to reduce pollution in those bodies.
2. Target 6.5: Implement integrated water resources management at all levels. The article illustrates the complex interplay between federal (EPA, Supreme Court) and state (Maryland General Assembly) governance in managing water resources, which is a core component of this target.
3. Target 6.6: Protect and restore water-related ecosystems. The discussion is heavily focused on the protection of wetlands and tributaries. The proposed rule’s criteria, such as requiring a “continuous surface connection,” determine which of these vital ecosystems receive federal protection.
4. Target 14.1: Prevent and significantly reduce marine pollution of all kinds, in particular from land-based activities. By regulating upstream water bodies, the Clean Water Act aims to control land-based pollution that ultimately flows into and harms marine environments. The change in the WOTUS definition affects the first line of defense against this type of pollution.
5. Target 15.1: Ensure the conservation, restoration and sustainable use of terrestrial and inland freshwater ecosystems and their services, in particular… wetlands. The article’s focus on the legal protection afforded to wetlands directly corresponds to this target. The narrowing definition of regulated wetlands could impact their conservation.
6. Target 16.3: Promote the rule of law… and ensure equal access to justice for all. The article highlights Maryland’s “Clean Water Justice Act of 2024,” which it states “enshrined in state law a dramatic new right for residents to sue certain parties for certain water violations.” This directly relates to promoting the rule of law and enhancing public access to environmental justice.

3. Are there any indicators mentioned or implied in the article that can be used to measure progress towards the identified targets?

While the article does not provide quantitative data, it mentions or implies several qualitative and process-based indicators for measuring progress:

• Indicator for Targets 6.3, 6.6, 14.1, 15.1: The legal and regulatory scope of protected water bodies. The primary indicator is the definition of “waters of the United States” itself. The article details the shift towards a more limited definition based on a “continuous surface connection.” Progress towards protecting more ecosystems could be measured by the breadth of this legal definition in federal and state law. A broader definition would indicate greater protection.
• Indicator for Target 6.5: The existence and nature of multi-level governance frameworks for water management. The article describes the interaction between federal rules (EPA proposal) and state-level “backstops” (Maryland legislation). The development and implementation of these coordinated legal frameworks serve as an indicator of integrated water resource management.
• Indicator for Target 16.3: The availability of legal mechanisms for public access to environmental justice. The article explicitly points to an indicator: the establishment of the “new right for residents to sue” under Maryland’s Clean Water Justice Act. The existence and use of such legal provisions can measure progress in ensuring access to justice.

4. SDGs, Targets, and Indicators Table

Source: conduitstreet.mdcounties.org