On January 5, 2026 The Society for Biodiversity Preservation provided comments to US EPA on the Proposed Rule Revising the Definition of “Waters of the United States” (Docket Id: EPA-HQ-OW-2025-0322).
The Society for Biodiversity Preservation argued that this proposed WOTUS rule would significantly weaken national water safeguards in direct contradiction to the Clean Water Act’s objective to “restore and maintain the integrity of the Nation’s waters.” If this proposed rule were finalized, it would certainly have widespread environmental, public health, and economic repercussions.
- The proposed rule exceeds Sackett and narrows jurisdiction beyond what the Supreme Court requires The agencies propose new narrow definitions for “relatively permanent” and “continuous surface connection,” and remove “interstate waters” as a standalone jurisdictional basis. These changes would further constrict coverage beyond Sackett, which, while limiting jurisdiction over certain wetlands, did not require the wholesale elimination of interstate waters as an independent category nor the aggressive narrowing of connectivity standards that ignore seasonal hydrology. The agencies’ own summary indicates a deregulatory intent to reduce Clean Water Act Section 404 permitting and mitigation relative to the 2023 baseline. This policy is thus driven entirely by policy preference and not compelled by the Court’s holding.
- Science and Hydrology: Seasonal and Ephemeral Waters Are Integral to Water Quality. The proposal’s reliance on year-round or “wet-season” flow as a proxy for jurisdiction ignores well-established hydrological science which has unequivocally established that intermittent and ephemeral streams are essential conduits for pollutants and sediments to downstream navigable waters and drinking water intakes. By excluding these systems from regulatory framework, the agencies are creating regulatory blind spots where pollution can enter the hydrologic network unregulated, undermining water quality in lakes, rivers, and reservoirs. This undermines decades of science and practical watershed management experience that recognize hydrological connectivity regardless of surface flow continuity.
- Public Health and Economic Costs: Drinking Water, Treatment, Flood Damages. Science has long established the irreplaceable value of wetlands and headwater streams – they filter contaminants, attenuate floods, and recharge aquifers. Narrowing WOTUS will increase drinking water treatment costs (e.g. nitrate and cyanotoxin removal) leading to degraded water supplies, elevate flood risk resulting in higher insurance claims, and cause natural infrastructure damage resulting in reduced essential services. The vast long-term economic costs and health burdens will ultimately be borne by ratepayers and communities. The agencies’ Regulatory Impact Analysis acknowledges cost savings to project proponents but fails to fully internalize forgone benefits including the avoided damage and treatment costs provided by intact wetlands and streams.
- Environmental Justice and Tribal Impacts: Unequal Exposure and Jurisdictional Gaps. The proposal disproportionately affects tribal nations and disadvantaged communities, many of whom rely on systems beyond reservation boundaries and lack authority to regulate off-reservation waters. Tribal advocates warn that narrowing WOTUS will reduce federal backstop protections that are critical for safeguarding culturally and ecologically important water resources. Environmental justice experts also caution that Black and Latino communities already face higher pollution burdens and flood risks; further reducing federal coverage exacerbates inequities.
- Cooperative Federalism Reality: States Are Not Filling the Protection Gap
The proposal presumes that states and tribes will “fill the gap”. This is a clear dereliction of statutory duties of the federal agencies under the Clean Water Act because, in practice, most states lack robust programs and those that do have such programs lack the resources for implementation. This would result in scaled back protections post-Sackett, leaving vast areas without meaningful safeguards. Even where states do act, coverage would be uneven and subject to political shifts, creating a patchwork that undermines national water quality goals and interstate downstream users. A durable rule must preserve a minimum uniform federal floor of protections for WOTUS while allowing states to go further but NOT remove the floor entirely. - Interstate Waters: Eliminating an Independent Basis Undermines Downstream Protection. Removing interstate waters as a standalone category ignores the interstate nature of water pollution and the Clean Water Act’s original purpose to address cross-boundary impacts. Interstate rivers, lakes, and wetlands are shared resources; federal oversight is essential to prevent upstream actors from imposing externalities on downstream states and tribes.
- Process and Record: Insufficient Justification and Inadequate Consideration of Alternatives. While the agencies highlight stakeholder engagement, the 45-day comment window over major holidays and the proposal’s breadth suggest insufficient time for states, tribes, and the public to evaluate complex geospatial and programmatic impacts. The agencies should extend the comment period and provide detailed, peer-reviewed analyses of hydrological connectivity, climate resilience, and cumulative effects, including quantitative estimates of wetlands/stream miles losing coverage and downstream pollutant transport.
SSBP recommends that the agencies withdraw this rule and work on a new science-based proposal that accurately captures science-based hydrological connectivity, ensures environmental justice, and preserves cooperative federalism without creating a protection gap or sacrificing existing protections afforded by the Clean Water Act. The agencies must conduct a robust, peer-reviewed scientific assessment of cumulative impacts on water quality, flood mitigation, biodiversity, and climate resilience, and fully quantify costs and benefits to communities and utilities of any proposed rule. The agencies must also extend the public comment period and undertake meaningful tribal consultation and EJ outreach to ensure affected communities can participate and inform the rulemaking record. To protect interstate waters, and ensure a durable, nationwide baseline of protection that supports clean drinking water, flood resilience, and healthy ecosystems is the minimum required of the proposed rule on WOTUS.