Re: Comments of Clean Water Action and Clean Water Fund on the Proposed Rule Revising the Definition of “Waters of the United States” (Docket ID No. EPA-HQ-OW-2025-0322)
Administrator Zeldin and Assistant Secretary Telle,
Clean Water Action and Clean Water Fund submit the following comments in strong opposition to the proposed rule, which would revise the regulations defining waters federally covered under the Federal Water Pollution Control Act (also known as the Clean Water Act). We urge the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) not to finalize the proposed rule, which would further weaken the definition of “Waters of the United States” under the Clean Water Act.
Clean Water Action is a national organization with members across the country. Priorities include improving water quality, ensuring safe drinking water, reducing toxic exposures, and addressing the climate crisis. Clean Water Fund engages in policy analysis, research, and public and policymaker education focused on reducing water pollution, protecting drinking water, and ensuring robust implementation of Clean Water Act programs. For more than five decades, Clean Water Action and Clean Water Fund have worked to advance the goals of the Clean Water Act and to ensure that its protections are implemented consistent with science, statutory purpose, and long-standing agency practice.
The proposed rule represents a significant and unwarranted narrowing of Clean Water Act jurisdiction that goes well beyond what is required by the Supreme Court’s decision in Sackett v. The Environmental Protection Agency (2023). The proposal introduces new concepts, exclusions, and ambiguities that will further erode protections for wetlands, streams, and headwaters nationwide. Most concerning among these is the proposed rule’s reliance on an undefined and inconsistently applied concept of a “wet season,” which creates arbitrary jurisdictional cutoffs, undermines regulatory certainty, and invites widespread loss of protections for waters that play critical roles in maintaining downstream water quality, flood resilience, and drinking water supplies.
I. The Proposed Rule Narrows Jurisdiction Far Beyond What is Required by the Sackett v. EPA Decision
In Sackett, the Supreme Court held that the Clean Water Act covers only those wetlands that have a “continuous surface connection” to relatively permanent bodies of water such that they are “indistinguishable” from those waters. While Clean Water Action and Clean Water Fund strongly disagree with this interpretation and its departure from decades of science-based water protection, we recognize that the agencies are obligated to implement the Court’s holding. The Biden Administration complied with the ruling and released a final conforming rule that aligns with the Sackett decision; therefore, no further regulatory changes are necessary. Over half of the nation’s wetlands and thousands of miles of streams have already lost Clean Water Act protections because of the Sackett decision.
The proposed rule does not simply implement Sackett; it goes significantly further. The Court did not require the agencies to eliminate protections for all seasonal or rain-dependent streams, nor did it mandate the exclusion of wetlands and tributaries that contribute to downstream navigable waters through periodic or predictable hydrologic connections. Nor did the Court direct the agencies to adopt new temporal limitations—such as reliance on an ill-defined “wet season”—to determine jurisdiction.
By layering new restrictions onto the already-narrowed scope imposed by Sackett, the proposal effectively rewrites the Clean Water Act’s jurisdictional framework in a manner unsupported by the statutory text or the Court’s decision. This approach transforms Sackett from a limiting interpretation into a justification for wholesale deregulation of upstream waters, contrary to the Act’s objective “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”
II. The Failure to Define “Wet Season” Creates Arbitrary and Unworkable Jurisdictional Boundaries
One of the most significant and troubling aspects of the proposed rule is its reliance on the concept of a “wet season” without providing a clear, science-based definition. The proposal appears to treat the presence or absence of surface water during certain periods as determinative of jurisdiction, yet it fails to specify how the wet season is identified, how long it lasts, or how it varies across regions, watersheds, and climatic conditions.
Hydrology does not operate on uniform calendars. Wet seasons differ dramatically by geography, elevation, climate, soil type, and watershed characteristics. In arid and semi-arid regions, streams may flow only in response to precipitation but nonetheless provide critical downstream functions. In humid regions, wetlands may appear disconnected at the surface for portions of the year while maintaining subsurface or episodic surface connections that are essential to water quality and flood mitigation.
By failing to define the wet season, the rule creates a regime in which jurisdiction may hinge on whether a site inspection occurs on the “right” or “wrong” day. A stream or wetland could lose protection simply because water is not present at the moment of observation, even if it predictably conveys flow during certain times of year or following rainfall events. This is not a scientifically defensible approach, nor is it consistent with the Clean Water Act’s preventative purpose.
The lack of a clear definition also invites inconsistent application by regulators, landowners, and courts. Different districts or regions may apply different interpretations of when a wet season begins or ends, leading to uneven enforcement and increased litigation. Rather than providing regulatory clarity, the proposal injects uncertainty into an already complex jurisdictional landscape.
III. The Proposed Rule Fails to Analyze the Severe Consequences of the Loss of Clean Water Act Protections
The Clean Water Act is premised on the understanding that waters are interconnected, and that pollution introduced into upstream or adjacent waters will ultimately affect downstream rivers, lakes, and drinking water sources. By narrowing jurisdiction based on surface conditions at specific moments in time, the proposed rule disregards this fundamental reality.
Seasonal streams, ephemeral tributaries, and wetlands—particularly those in headwater areas—play an essential role in filtering pollutants, moderating flows, recharging groundwater, and reducing flood risks. When these waters lose protection, pollutants such as nutrients, sediments, pesticides, and pathogens are more likely to reach downstream waters untreated. Floodwaters move faster and with greater force, increasing risks to communities and infrastructure. Drinking water utilities face higher treatment costs, which are often passed on to ratepayers. Clean Water Action and Clean Water Fund has released a white paper, highlighting the importance of protecting all water resources in order to protect our drinking water sources (see Attachment 1).
Despite the sweeping nature of the proposed changes, the proposal offers no meaningful analysis of the multiple severe impacts from removing protections. The agencies have not provided a clear estimate of how many waters would lose Clean Water Act protections under the rule, nor do they evaluate the downstream consequences of those losses for water quality, public health, or local economies. The proposed rule does not adequately assess the impacts to drinking water, including subtle water chemistry changes that influence treatment needs. It also does not analyze effects on wildlife, habitat, recreation, or fishing.
This omission deprives the public, decision-makers, and other stakeholders of the information necessary to evaluate the proposed rule’s consequences. In previous rulemakings, the agencies have acknowledged the importance of understanding the scope of jurisdictional changes. Here, however, the absence of quantification suggests either that the impacts are not fully understood or that they are so extensive as to be politically inconvenient to disclose. Neither explanation is acceptable.
Without a clear accounting of affected waters, it is impossible to assess the full scope and severity of the proposed rule’s impacts. The agencies should not finalize a rule that would fundamentally reshape national water protections without first providing a transparent analysis of its effects. Proceeding with a rule of this magnitude without quantifying its impacts is deeply concerning and inconsistent with sound policymaking.
IV. The Proposed Rule Conflicts with the Clean Water Act’s Purpose and Longstanding Implementation
For decades, the Clean Water Act has been implemented with the understanding that protecting upstream waters is essential to protecting downstream navigable waters. This approach reflects both scientific consensus and common sense. The proposed rule abandons this framework in favor of a narrow, surface-connection-focused approach that elevates form over function.
By introducing undefined temporal concepts, disregarding cumulative impacts, and failing to quantify losses, the rule undermines the Act’s core purpose. It effectively invites increased pollution and destruction of waters that communities rely on for drinking water, flood protection, recreation, and economic activity.
V. Conclusion
Clean Water Action and Clean Water Fund urge EPA not to finalize this rule. The agencies should instead maintain a definition of “Waters of the United States” without introducing additional, unsupported restrictions that further erode Clean Water Act protections.
If the agencies proceed with revising the definition, they must clearly define any concepts relied upon—such as “wet season”—ground those definitions in sound science, fully quantify the waters that would lose protection, and meaningfully assess the downstream consequences of those losses. Anything less risks irreparable harm to the nation’s waters and to the communities that depend on them.
Thank you for the opportunity to submit these comments.
Respectfully submitted,
Sean Jackson
National Water Campaigns Coordinator
Clean Water Action / Clean Water Fund
