The League of Women Voters of the United States submitted comments to the Environmental Protection Agency (EPA) opposing their proposal to change the definition of "Waters of the United States" (WOTUS).
December 24, 2025
Administrator Lee Zeldin
Environmental Protection Agency
1200 Pennsylvania Avenue NW
Washington, DC 20004
Submitted electronically via regulations.gov
Re: Updated Definition of “Waters of the United States”
Docket Number: EPA-HQ-OW-2025-0322
Dear Administrator Zeldin,
These comments are provided by the League of Women Voters of the United States (The League), in response to the US Environmental Protection Agency’s (EPA’s) and the US Department of the Army’s (“the agencies”) proposed rule to revise the regulations defining the scope of waters that are jurisdictional under the Federal Water Pollution Control Act, as amended, also known as the Clean Water Act (CWA), in light of the US Supreme Court's (SCOTUS’) 2023 decision in Sackett v. Environmental Protection Agency. The League opposes key elements of the agencies’ proposed rule, which will significantly impair water quality protections throughout the US and are contrary to public interest.
The League recognizes the complexities of balancing the costs and benefits of regulatory action, as well as the importance of regulatory clarity and predictability. However, the proposed rule fails to reach its stated goals to provide “regulatory certainty” and to implement the CWA’s objective to “restore and maintain the quality of the Nation's waters.” Among other things, the proposed rule excludes groundwater and some interstate waters from CWA jurisdictional authority and undercuts the CWA-required cooperative federalism framework. The proposed narrower definitions of waters of the United States (WOTUS) are contrary to the legislative intent of the CWA and the principles of hydrology. The League and Clean Water The League is a 105-year-old nonpartisan, nonprofit organization committed to ensuring that everyone is represented in our democracy. We are a grassroots group of more than one million members and supporters across more than 800 local and state Leagues nationwide. The League focuses on advocacy, education, litigation, and organizing to empower voters and defend democracy.
The League’s long history of successfully advocating for the protection of America’s water resources began in earnest in the 1950s, and the League’s citizen activists helped pass the CWA in 1972. The League supports maximum protection of public health and the environment, policies that reflect the interrelationships between groundwater and surface water, the protection of watersheds and groundwater recharge areas, and measures to protect lakes and wetlands. The League also believes that the federal government should have a major role in setting standards for environmental protection.
The Clean Water Act
In 1948, Congress passed the bipartisan Federal Water Pollution Control Act to address severe water pollution resulting from rapid post-war industrialization and urban growth. It authorized the Surgeon General to create programs to reduce pollution in interstate waters and their tributaries, provided funding and technical assistance, and supported interstate cooperation. As water pollution continued to increase, in 1965, Congress passed the bipartisan Water Quality Act, which required states to set water quality standards. When these laws proved ineffective at stopping water pollution and protecting water quality and human health, in 1972, Congress passed the Clean Water Act with bipartisan support.
The CWA recognized the need for a strong federal framework and regulatory enforcement because the states were unable to work cooperatively and effectively to address sources of water pollution. The legislative history of the CWA, developed to address the failures of previous legislation, informed the lengthy inquiry conducted by Congress in the late 1960s and early 1970s. The final, overwhelmingly bipartisan-supported act to “restore and maintain the chemical, physical and biological integrity of the Nation’s waters” reflected fiscal concerns and concessions, as well as fundamental findings regarding basic hydrology and how water moves through this connected system. While the CWA has been amended by Congress and challenged in court, its original intent and goals remain unchanged.
Most recently, the US Supreme Court in the Sackett decision articulated a two-part inquiry to address the narrow question of when wetlands qualify as WOTUS. The Court held that a wetland is jurisdictional when it has a “continuous surface connection” to a “relatively permanent body of water,” but it did not define those two terms, leaving their interpretation and application to the agencies. In response to the Sackett decision, in September 2023, the agencies issued a rule to amend the definition of WOTUS to conform with the SCOTUS ruling. The agencies now contend that this proposed rule is needed to further clarify the Sackett decision. While additional clarity regarding the Supreme Court's holding may be worthwhile, addressing issues not raised in the Sackett case, including jurisdictionally of groundwater and interstate waters, is reaching beyond what the Court required.
The Proposed Rule
The agencies’ proposed rule creates a new categorical exclusion for groundwater, effectively removes some interstate waters from CWA’s jurisdictional reach, and undercuts the CWA-required cooperative federalism framework. These new definitions and exclusions are contrary to the legislative history of the CWA and the basic principles of hydrology.
Exclusion of Groundwater from CWA Jurisdictional Authority
The agencies’ categorical exclusion of groundwater from CWA jurisdictional waters contradicts congressional intent, potentially conflicts with the SCOTUS County of Maui v. Hawaii Wildlife Fund decision, and fails to address discharged groundwater.
In 1972, Congress found that “water moves in hydrologic cycles and does not respect political boundaries.” As defined by the United States Geological Survey, the “water [hydrologic] cycle describes the continuous movement of water on, above, and below the surface of the Earth.” Groundwater is the water that moves below the Earth’s surface, connecting with surface waters. Thus, as per congressional intent, groundwater is an integral part of our nation’s waters.
In the proposed rule, in order to justify the exclusion of groundwater, the agencies argue that the 2020 Navigable Waters Protection Rule (NWPR) interpreted the WOTUS not to include groundwater. However, the 2020 NWPR was vacated by two district courts because it failed to adequately consider the statutory objective of the CWA and the effect of the rule on the nation’s waters. It was replaced by the agencies’ January 2023 rule, which was amended in September 2023 to conform with the Sackett decision.
In 2020, SCOTUS affirmed groundwater’s importance as a conduit of pollutants that can be subject to CWA jurisdiction in Maui. By categorically excluding groundwater, the agencies are creating a potential loophole to the Maui decision.
Additionally, the groundwater exclusion impedes the ability to address polluted groundwater discharged into WOTUS. In many irrigated areas, groundwater can discharge to the surface and enter or be pumped into jurisdictional waters, bringing along pollutants such as salts, pesticides, and nutrients (e.g. natural or engineered groundwater drainage such as tile drainage systems in agricultural areas). This drained groundwater must be subject to discharge and treatment requirements. The proposed rule fails to address the circumstances for assessing discharge d groundwater as relatively permanent waters for jurisdictional assessment.
Finally, the agencies undermine their argument to exclude groundwater by admitting that “under certain circumstances, pollutants released to groundwater can reach surface water resources.”
Removal of “Interstate Waters” from CWA Jurisdictional Authority
The agencies’ removal of “interstate waters” from CWA jurisdictional waters is antithetical to the CWA’s core purpose. Congress enacted the CWA in response to the states’ demonstrated inability to address interstate water pollution through state-level regulation alone. Congress’ finding that water “does not respect political boundaries” and that “existing State and local programs have failed to control pollution because upstream sources are often beyond the reach of downstream States” provided a key rationale for asserting federal jurisdiction over the nation’s waters. The agencies’ proposal to require waters that cross interstate boundaries to first satisfy their new definition of WOTUS before asserting federal jurisdiction under the CWA reverses the jurisdictional inquiry and shifts primary responsibility to the states—exactly the opposite of what Congress intended in enacting the CWA.
Undercutting the CWA’s Cooperative Federalism Framework
Under a cooperative federalism framework, the federal, state, and tribal governments share responsibility for achieving national policy goals established by the federal government. Under the CWA, this framework requires EPA, a federal agency, to establish minimum regulatory standards, and to provide financial and technical assistance to states and tribes for their implementation.
For this system of cooperative federalism to function, the definition of WOTUS must reflect actual hydrology and hydrologic connectivity to ensure that the CWA’s jurisdictional framework is administrable by the states and tribes. It also requires meaningful federal support for state and tribal implementation of environmental laws. As a significant number of states and tribes have been unable to develop or maintain comprehensive and effective regulatory programs due to a combination of legal, fiscal, and administrative constraints, the federal government has failed to provide the necessary support for implementation.
Further, while the proposed rule declares that “States and Tribes retain authority to implement their own programs to protect the water in their jurisdiction more broadly and more stringently than the Federal Government,” tribal authority under the CWA is not coextensive with state authority. Tribes must obtain federal approval for “Treatment As a State” status to be able to exercise regulatory authority over land and water resources. To date, very few tribes have been granted authority to implement even some portions of the CWA, and none have the authority to implement all portions that are commonly delegated to states.
The Definitions Do Not Reflect US Hydrology
Many of the proposed rules’ definitions do not reflect advancements in science, technology, and commerce, nor the diverse hydrologic conditions across the nation. See the attached appendix for further details addressing these concerns.
Conclusion
The agencies’ newly proposed exclusions, exemptions, and narrow definitions are not required by the Supreme Court’s decision in Sackett v. Environmental Protection Agency; rather, they reflect a policy choice by the agencies to narrow federal jurisdiction in a manner that abdicates responsibilities Congress assigned to them under the Clean Water Act.
Appendix
Many of the proposed definitions and approaches for which the agencies seek input do not correctly represent the hydrology of much of the western US, as noted in the comment below. (See Attached PDF for full appendix)