Comments on Changes to WOTUS Decision

A team of scientist's from LWV Upper Mississippi River Region reviewed the draft changes to the definition of Waters of the US, and has drafted comments that were submitted to LWV US for review.  LWV US's approval was necessary before the comments can be submitted because it's a federal issue.   The approval was granted on  December 17, 2025, and the letter was submitted to US EPA on ...  

This is the comment letter in its entirety.  

umrr_wotus_rule_response_12-15-25_as_amended.pdf
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​The comments are based on the LWV position on Environmental Protection and Pollution Control (Impact on Issues 2024-26, page 110.

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Summary of the Comment Letter:

What is the proposed 2025 USEPA WOTUS Rule?

• It is the EPA and Army Corps of Engineers’ (ACE) effort to develop regulations to implement the 2023 Supreme Court Sackett decision to change the WOTUS, found to be too broad, too vague, and exceeded the authority granted by the Clean Water Act (CWA) concerning the traditional balance between federal and state power over private property, without clear language to implement this.

 

• The “nexus” approach implemented in 2015 attempted to account for protection of the physical, chemical, and biological aspects of water and connectivity, was found to be inconsistent with the CWA's text and structure and a source of regulatory uncertainty for landowners.

 
What’s included in the proposed EPA 2025 WOTUS Rule?
Revisions to key definitions:

• “Relatively permanent waters”: only includes bodies of surface water that are standing and continuously flowing
• “Continuous surface connection” for wetlands: wetlands must physically touch a regulated water body to qualify
• “Tributaries”: must connect to a navigable water body, directly or through other connected features

New and clarified exclusions proposed:

• Intrastate lakes or ponds or interstate waters, unless otherwise jurisdictional
• Groundwater
• Waste treatment systems
• “Prior converted” farmland and certain ditches

Comment Letter Comments

1. Role and Significance of EPA to the Clean Water Act

This was provided in previous testimony, and we have indicated that in the letter.
      2 .Failure to Rely on the Significance of Connectivity and Ecosystem Function

• proposed rule only recognizes physical connectivity of the hydrologic systems, ignoring chemical and biological
• fails to follow the mandate of the Clean Water Act to the physical, chemical, and biological integrity of US waters.
• removes water bodies from jurisdiction that continue to play a role in filtering pollutants, aquifer recharge, flood control, habitat and diversity, and other functions. Even if they don’t have a connection as defined in the proposed WOTUS, they are a part of the hydrologic system.  Ephemeral streams and intermittent streams act as natural buffers to prevent flooding.
• the proposed definition of WOTUS focuses on permanence and what you can see with the naked eye of a farmer or developer
• removal of protections from upstream waters in states that have no water protections now can negatively impact downstream waters with contaminants, our example is the dead zone in the Gulf of America

2. Consequences of Narrowing the Definition of WOTUS on the Upper Mississippi River Region

• Losses and impacts due to the implementation of the amended WOTUS definition in the UMMR are discussed in this section. 

 

• These include wetland quantity, water quality, drinking water, habitats and biota, extreme weather, geological complexity, agricultural concerns, increased mining pressure, increasing number of data centers, and impacts to states that rely on federal protection for waters in their states, Iowa and Missouri.

 
3, Alternatives Regarding the Proposed 2025 WOTUS Rule

• Congress amend the CWA and with a statutory definition of WOTUS that explicitly includes wetlands and streams based on their physical, chemical, and biological connection to navigable waters, regardless of a continuous surface connection. 

 

• legislation could 1) clarify that EPA and ACE have discretion to use the best available science, including connectivity of waters that are not permanent, when specifying jurisdiction, and 2) recognize state authority over land and water resources.

 

• other alternatives include various ways to amend the CWA, including adding definitions of the significant nexus standard and continuous surface connection, and including rather than excluding ephemeral and intermittent waters.

 

• All of these alternatives would address the clarity of scope and specificity of authority found lacking by the Supreme Court in the Sackett decision.

 

• Use of a more integrated method with scientific data to confirm the hydrologic connection and state legislation that accounts for all aspects of connectivity to support waste and wetlands functions are two other alternatives