Lee Zeldin as EPA head

[Fenix]

How do you guys think Trump's EPA appointee, Lee Zeldin, will affect environmental permitting over the next four years? I'm hopeful that he'll cut out some of the red tape that's rife in the industry. What about you?

 

[Eric]

Good question. EPA is in charge of developing the Corps' Section 404 regulations so it will be interesting to see how far they roll things back. The 2023 Sackett decision removed ephemeral waters and lots of wetlands from our jurisdiction. I expect that Mr. Zeldin and Corps ASA will issue regs and AJD policy memos that narrow jurisdiction even further, probably removing lots of intermittent streams and non-contiguous adjacent wetlands.

 

[Bob Sweeney]

My hope and belief is that the new administration will shift agency focus from prescriptive codes to measuring actual performance. Where is the pollution? What are the real sources of contaminants? Is the air, water and land cleaner?

 

[StrictlyUrban]

My hope and belief is that the new administration will shift agency focus from prescriptive codes to measuring actual performance. Where is the pollution? What are the real sources of contaminants? Is the air, water and land cleaner?

But is it possible to do that before significant irreversible harm is done? That's my main concern with that sort of initiative.

My opinion is that Mr. Zeldin is fairly centrist, and not much will change. I just don't see him as a major disruptor. I know I'm in the minority, though.

 

[Overtime]

But is it possible to do that before significant irreversible harm is done? That's my main concern with that sort of initiative.

I understand your concern, but we've gotten so bogged down with rules and regulations that they're often too prohibitively expensive and complicated to follow. It just leads to a bunch of lawsuits.

 

[cpaschke]

Interpretation of the 3-12-2025 WOTUS Continuous Surface Connection Memorandum from Dir. Zeldin. What is the consensus regarding federal jurisdiction of intermittent streams? Will intermittent streams be a feature under state jurisdiction?

 

[Eric]

Interpretation of the 3-12-2025 WOTUS Continuous Surface Connection Memorandum from Dir. Zeldin.

Yeah, EPA rescinded all CSC JD policy memos the other day. A wetland is now only jurisdictional if it directly abuts an RPW/TNW - i.e., the three-parameter wetland boundary has to intersect the OHWM. Wetlands any higher in the floodplain or connected only by a discrete conveyance are no longer regulated under Section 404. This is totally consistent with Sackett but will mean major loss of wetland justification nationwide.

What is the consensus regarding federal jurisdiction of intermittent streams?

No consensus. EPA announced they intend to redefine WOTUS but didn't say anything about how the definition of RPW might change.

Per Sackett, RPWs are defined as:

only those relatively permanent, standing or continuously flowing bodies of water "forming geographic[al] features" that are described in ordinary parlance as
"streams, oceans, rivers, and lakes."

You have to ask, could RPWs be redefined narrowly to only include perennial streams based on this?

 

[RavenGirl56]

Interpretation of the 3-12-2025 WOTUS Continuous Surface Connection Memorandum from Dir. Zeldin. What is the consensus regarding federal jurisdiction of intermittent streams? Will intermittent streams be a feature under state jurisdiction?

I noticed there is a follow up publication to the federal register after the memo was posted - it said in the memo there would be, so I checked and found this: https://www.federalregister.gov/doc...-establishment-of-a-public-docket-request-for

Reading it now and hoping for some follow up discussion. There was a period for public comment, but it appears to have ended April 25.

 

[cpaschke]

Thank you. At the end of the federal register, there is a link to listening sessions and there are a couple remaining. I will likely sign up to attend. It would be great to have clear definitions so that there is less room for case-by-case interpretation by regulators.

 

[Eric]

Keeping an eye out for a revised definition of RPW in particular. See comments submitted by Pacific Legal Foundation (https://pacificlegal.org/wp-content/uploads/2025/04/PLF-FINAL-WOTUS-Recommendations-Mar-27-2025.pdf). This is the same group that represented the Sacketts and brought their case to the Supreme Court.

PLF is proposing that relatively permanent means that waterways must flow "a majority of the year," not just "more than in direct response to rainfall" as it's currently interpreted. This would eliminate most seasonal streams in the arid west where I'm at. PLF also proposed navigable-in-fact be used as a standard, i.e., only regulate if you can put a boat in it.

I'm expecting the new regulation will be issued in one step without public notice/comment, like the last administration did with the Amended 2023 Rule.

Will be interesting to see just how much jurisdiction gets eliminated... should find out soon I think.

 

[RavenGirl56]

Thank you. At the end of the federal register, there is a link to listening sessions and there are a couple remaining. I will likely sign up to attend. It would be great to have clear definitions so that there is less room for case-by-case interpretation by regulators.

I agree. That's the main point that's been reiterated since Sackett v. EPA. The only downside I'm seeing to simplifying the definitions so far is that a lot of important ecological habitats are no longer protected.

 

[Eric]

I agree. That's the main point that's been reiterated since Sackett v. EPA. The only downside I'm seeing to simplifying the definitions so far is that a lot of important ecological habitats are no longer protected.

Yeah, delineations require documentation of various indicators for wetland boundaries, stream/lake boundaries (OHWM), and - more recently - RPW status. Some aren't readily observable, e.g., 50/20 rule for wetlands or aquatic macroinvertebrates for flow duration, but that's what's called for to identify the large range of aquatic resources out there.

Bottom line is you really can't simplify WOTUS identification w/o reducing jurisdiction. It's the same thing. I'm personally bracing for a super simple "is it always wet?" test (lol).

 

[RavenGirl56]

Yeah, delineations require documentation of various indicators for wetland boundaries, stream/lake boundaries (OHWM), and - more recently - RPW status. Some aren't readily observable, e.g., 50/20 rule for wetlands or aquatic macroinvertebrates for flow duration, but that's what's called for to identify the large range of aquatic resources out there.

Bottom line is you really can't simplify WOTUS identification w/o reducing jurisdiction. It's the same thing. I'm personally bracing for a super simple "is it always wet?" test (lol).

I'm the delineator for my firm, so I definitely get that it's not always cut and dry "pun not intended" lol. That's why we have an array of hydrologic indicators, so that wetlands can be identified during different times of the year or dry years.

After reading PLFs statement, I think the "is it wet test" seems very plausible. There's so much we still don't understand about the natural world, yet we seem insistent on believing the only value for land is to make it do what we want.

could only imagine if there were government incentives, similar to agricultural tax breaks, for maintaining unique ecological habitats on personal property. Wetlands are so cool, their ability to filter CO2 is reason enough to reward people for keeping or enhancing them.

 

[Eric]

I'm the delineator for my firm, so I definitely get that it's not always cut and dry "pun not intended" lol. That's why we have an array of hydrologic indicators, so that wetlands can be identified during different times of the year or dry years.

Here's the latest from EPA Administrator Zeldin this week:

"Our goal is that any of your farmers, ranchers, landowners are able to look at water on their property and they are able to determine on their own whether or not that is water of the United States that’s going to be regulated by the federal government. They should not have to go out and hire some lawyer or some consultant to be able to tell them whether or not that waterway is a water of the U.S. We want to do it that is durable, where no matter what would happen in a presidential election in the future, that the definition doesn’t have to change again. We believe that it’s very easy to have a simple, straightforward, prescriptive definition of waters of the United States."

So they're clearly not wild about "delineator" being a paid profession lol. For what it's worth, they're not a fan of my profession either. But I think this is more talking point than something they can realistically follow through on. For example, I can't see 3-parameter wetland delineations per the 1987 manual going away (but I could be wrong...).