Gunpowder RIVERKEEPER® was pleased to be able to provide language to inform WATERKEEPERS® Chesapeake’s letter to the Environmental Protection Agency(EPA) during the public comment period on the proposed definition change to Waters of the United States (WOTUS). Thanks to WATERKEEPERS® Chesapeake for their continued efforts to protect the Bay and for allowing Gunpowder RIVERKEEPER® to help support their mission.
WATERKEEPERS® Chesapeake’s written testimony is reproduced below with Gunpowder RIVERKEEPER®’s testimony in bold:
January 5, 2026
Submission via www.regulations.gov
Lee Zeldin
Administrator
Environmental Protection Agency
EPA Docket Center, Water Docket, Mail Code 28221T,
1200 Pennsylvania Avenue NW
Washington, DC 20460
Adam Telle
Assistant Secretary of the Army (Civil Works)
Department of the ArmyRe: Updated Definition of “Waters of the United States” EPA–HQ–OW–2025–0322
Dear Administrator Zeldin and Assistant Secretary Telle:
Thank you for this opportunity to comment on the U.S. Environmental Protection Agency’s (“EPA”)
and U.S. Army Corps of Engineers’ (“Corps”) (collectively, the “agencies”) Proposed Rule1 on the
regulatory definition of “waters of the United States” (“WOTUS”) under the Federal Water Pollution
Control Act, 33 U.S.C. §1251 et seq. (“Clean Water Act”), in light of the Supreme Court’s 2023 decision
in Sackett v. EPA, 598 U.S. 651 (2023) (“Sackett”).
On behalf of the undersigned Waterkeeper programs and other partners, Waterkeepers Chesapeake
submits these comments to emphasize the importance of maintaining, and wherever possible,
consistent with Supreme Court precedent, restoring longstanding protections for the nation’s waters.
In any effort to further refine the definition of WOTUS the agencies must remain guided first and
foremost by EPA’s core mission to protect human health and the environment, the Clean Water Act’s
fundamental objective, “to restore and maintain the chemical, physical, and biological integrity of the
Nation’s waters,” and the best available hydrologic and water quality science.
Waterkeepers Chesapeake is a nonprofit coalition of sixteen Waterkeeper programs representing
thousands of residents in the Chesapeake and Coastal Bay region spanning Virginia, West Virginia,
Maryland, Pennsylvania, Washington, DC, and Delaware. Waterkeepers Chesapeake fights for clean
water and a healthy environment by supporting Waterkeepers throughout the Chesapeake and
coastal regions as they protect their communities, rivers, and streams from pollution.
The Supreme Court’s decision in Sackett set legal boundaries, but it in no way compels the agencies to
diminish Clean Water Act protections beyond what the Court required. To the contrary, the agencies
retain—and must exercise—their authority to implement the Act as Congress intended, i.e., in a
manner that maximizes protection of waters and communities to the fullest extent that the law
allows. The proposed rule would instead move in the exact opposite direction, narrowing federal
jurisdiction over the Nation’s waters far further than Sackett demands, at grave expense to people,
communities, aquatic ecosystems, and the economy.
We understand, and have seen first-hand, how important a broad definition of “waters of the United
States” is to the functioning and effectiveness of the Clean Water Act to protect and restore water
quality across the country. The Clean Water Act is the bedrock of our work to protect rivers, streams,
lakes, wetlands, and coastal waters for the benefit of all of our members and supporters, as well as to
protect people and communities that depend on clean water for drinking, subsistence fishing,
recreation, their livelihoods, and their survival.
The Gunpowder River watershed is an example of the complex interconnections between streams and
wetlands that spans two states. In the recent past, EPA has described the Gunpowder Watershed as
having, ‘Nationally Significant Coldwater resources during an Environmental Assessment of a large-
scale infrastructure project. The Gunpowder drains a 450 square mile watershed area that starts in a
complex of seeps and springs in York and Adams counties in Pennsylvania, and then travels across
Carroll, Baltimore and Harford counties in Maryland. It comprises 217 miles with designated and
existing uses of cold water and drinking water supply streams. The new definitions posed in WOTUS
threaten these uses, notably, the Interstate water exclusion, and the loss of protection under WOTUS
of stream segments without beds or banks.
The Gunpowder watershed exemplifies the connection with upstream surface water sources and
quality drinking water for 1.5 million Baltimore Metro-Area residents. Two dams, Pretty Boy and Loch
Raven, that if the new definition holds, “obstruct water flow” and so by the new definition would
leave the streams and rivers in over 400 square miles of watershed area in the Upper watershed
unprotected by WOTUS. In addition, there are over 1,192 acres of isolated wetlands within the
Gunpowder and Bush Watersheds that would lose protection under the new rule and are habitat for
Bog Turtles protected under the Endangered Species Act.
As the Supreme Court has repeatedly recognized, Congress passed the Clean Water Act with a singular
objective—to “restore and maintain the chemical, physical, and biological integrity of the Nation’s
waters”
The Clean Water Act applies to the Nation’s waters—i.e., the “waters of the United States”—
including, but not limited to, waters specifically referenced in the text of the Clean Water Act, such as
navigable waters, interstate waters, intrastate waters, wetlands, streams, rivers, lakes, territorial seas,
coastal waters, sounds, estuaries, tributaries, and bays.
Waters excluded from the WOTUS definition can be dredged, filled, and polluted with impunity
because the Clean Water Act’s most fundamental human health and environmental safeguard—the
prohibition of unauthorized discharges in 33 U.S.C. § 1311(a)—no longer applies. Unregulated
pollution discharged into waters that fall outside the agencies’ regulatory definition will not only harm
those receiving waters but will also travel through well-understood hydrologic processes before
harming other water resources, drinking water supplies, recreational waters, fisheries, industries,
agriculture, endangered and threatened species, and, ultimately, human beings.
The proposed rule makes clear that the agencies have no intention of interpreting and implementing
the Clean Water Act in a manner intended to best achieve Congress’ objective of restoring and
maintaining the chemical, physical, and biological integrity of the Nation’s waters. Rather, the
agencies’ obvious goal is to reduce the scope of federal jurisdiction over the Nation’s waters as much
as they think they can possibly get away with, which was certainly not Congress’s intent. Congress did
not charge the agencies with defining WOTUS or implementing the Clean Water Act in a manner that
would “cut red tape and provide predictability, consistency, and clarity for American industry, energy
producers, the technology sector, farmers, ranchers, developers, businesses, and landowners.”6
The proposed rule would strip federal protections for many streams and wetlands that are vital to
Maryland’s Eastern Shore. Those include seasonally dry wetlands like the Delmarva Bays; small
streams that treat stormwater from farm fields and towns; interstate headwaters of the Choptank,
Chester, and Sassafras rivers; tidally influenced ditches like those in Dorchester, Talbot, and Queen
Anne’s counties; and groundwater reservoirs that deliver most of the excess nitrate pollution
impacting these rivers. The proposed rule will cause increased flooding, reduced habitat for
waterfowl; fewer restrictions for developing forests, wetlands, and streams; and less mitigation to
account for the loss of those sensitive, yet highly valuable, ecosystems and watersheds.
These areas are not only valuable to support healthy environments, but they are also the backbone of
the local economy on Maryland’s Eastern Shore, sustaining industries like commercial and
recreational fishing, boating, tourism, hunting, outdoor recreation, and other natural resource-based
businesses. According to the Bureau of Economic Analysis, in 2023, the outdoor recreation industry in
Maryland generated nearly $10 billion and employed just under 3% of the state’s total employees,
with room to grow. Reducing protections of wetlands and streams puts both Maryland’s environment
and economy at risk.
By dramatically narrowing federal protections under the guise of claiming merely to be delineating the
boundary between federal and state authority, the agencies knowingly ignore the foreseeable and
unavoidable consequence that entire classes of waters will be left wholly unprotected from pollution
and destruction by any law whatsoever in large portions of the country. For the agencies to finalize
such draconian reductions to the scope of federal protections of the Nation’s waters flies in the face
of the Clean Water Act’s objective. To do so without a clear understanding and demonstration of the
public health, environmental, and economic costs of that action reflects a shocking indifference to
EPA’s mission.
A careful review of the proposed rule reveals that not a single change to the regulatory WOTUS
definition that the agencies have proposed would even arguably help to restore and maintain the
chemical, physical, and biological integrity of the Nation’s waters. Each and every proposed change
would be detrimental to the statute’s objective and disrespect Congressional intent. Specifically, and
without limitation, if finalized, the proposed rule would remove or narrow protected categories or
add or modify exclusions for classes of waters as follows:
● The “interstate waters” category would be completely eliminated. This category currently
includes rivers, streams, lakes, and other waters that form or flow across state borders. All
interstate waters and their tributaries have been protected under federal water pollution
control laws since 1948. An interstate water would only be protected if it falls within one of
the other remaining categories of jurisdictional waters preserved in the proposed rule.
● “Relatively permanent” is narrowly defined to require continuous flow year round, or at least
during what the agencies unscientifically refer to as the “wet season” to exclude many more
rivers, streams, lakes, ponds, canals, and other waters from protection.
● “Tributary” is unscientifically and narrowly defined to require relatively permanent flow, a bed
and bank, and a connection to a traditional navigable water or the territorial seas directly or
through another water or feature with relatively permanent flow. This would exclude even
“relatively permanent” rivers, streams, lakes, canals, and other waters if, prior to flowing into a
jurisdictional water, they temporarily flow subsurface or into other waters or features like
dams, tunnels, culverts, or wetlands that do not themselves maintain “relatively permanent”
flow. This will exclude many rivers, streams, lakes, ponds, canals, and other waters across the
country from federal protection.
● “Continuous surface connection” is narrowly defined to require adjacent wetlands, lakes, and
ponds to have surface water at least during the “wet season” and to physically touch another
jurisdictional water. This excludes most wetlands in the country and can even result in a single
wetland being deemed only partially jurisdictional.
● All ditches that are constructed or excavated dry land, which potentially includes a non-
jurisdictional water, are excluded from protection; also broadly defines ditch in a way that
could bring other waters, like canals and channelized, lined, or relocated rivers or streams, into
the exclusion. The only exception is if the “ditch” itself qualifies as a traditional navigable
water.
● Expands the “waste treatment system” exclusion, which allows jurisdictional WOTUS to be
impounded and converted to non-jurisdictional waters for uses like coal ash dumps, to
encompass all components of a system designed to meet the requirements of the CWA,
including lagoons and treatment ponds designed to either convey or retain, concentrate,
settle, reduce, or remove pollutants, either actively or passively, from wastewater prior to
discharge (or eliminating any such discharge).
● Reverts to a previous definition of “prior converted cropland” that allows the agencies to
identify prior converted cropland and limit the situations in which it can be determined to
have been abandoned (5 years of no agricultural use).
While unnecessarily attempting to propose exclusions and definitions, the proposed rule creates
confusion and uncertainty. The term “wet season” is included within one proposed definition but is
itself not defined. The use of the term “wet season” is not culturally or statutorily relevant in the
Chesapeake watershed states and therefore does not account for the regional difference in weather
and other environmental patterns. Snow melt and rainfall vary immensely across our region.
Relatively permanent is not necessarily six to nine months of a “wet season” in our region, rather
relatively permanent waterbodies flow consistently after every major rainfall event year-round. The
definitions provided in the proposed rule are arbitrary conditions that are not realistic for how
wetlands and streams function in our climatic conditions. Even setting a numeric value such as that
the wetland has surface water for at least 90 days would require a substantial level of climatic
continuous monitoring that would vary annually due to changing environmental conditions.
A clear example is a basalt mining company in Fairplay, PA that was discharging into Miney Branch, a
headwater ephemeral stream that only flows during rain events into the Monocacy River. The
discharge was composed of very fine suspended solids that polluted the stream for miles after every
rain event and filled in the stream bottom wiping out valuable macroinvertebrates that sustain fish. A
sports fishing club just downstream had trouble maintaining fish populations in a connected pond. In
2019, Upper Potomac Riverkeeper filed a notice of intent under the Clean Water Act. The company
did not challenge their standing and decided to work with them to put in place a sand filtration system
that reduced the total suspended solids by 90%. The system is still in use today. Under the new
proposed definition, this stream would not have been protected under the Clean Water Act,
precluding Upper Potomac Riverkeeper from challenging the company and the pollution could be
continuing to this day.
The proposed categorical exclusions of waste treatment systems, prior converted croplands, ditches,
and groundwater are not warranted or necessary. Public services like wastewater treatment have
been significantly improved nationwide under inclusion of CWA provisions. This revision in scope will
limit our collective ability to treat waste, manage runoff, or prevent contamination. This will leave the
public to deal with the consequences of industry malfeasance.
In our Chesapeake Bay watershed states (Pennsylvania, Virginia, Maryland, West Virginia, Delaware,
New York, and Washington D.C.), enormous gains have been made in upgrading wastewater
treatment plants that were historically problematic in their discharges and are now touted as being
exemplary contributors to the Chesapeake Bay restoration effort. There is no need to exclude
wastewater treatment plants in 2025 that are performing well with best available technologies and
meeting targets including local and regional Total Maximum Daily Loads.
Ditches function as permanent features for continual conveyance of water and should not be
excluded from jurisdiction. Discrete features do not inherently sever jurisdiction for wetlands and are
permanent structures that are meant to convey water in perpetuity.
We must avoid a situation where an applicant intentionally uses a ditch for discharge so that their
obligations under the CWA are excluded. The complexity of water systems and risks of water
contamination are severe, so we recommend maintaining the current scope and procedure to protect
the well-being of our collective watersheds. The proposed rule will create confusion and uncertainty,
which will make it harder for pollution control officials and affected communities to enforce the law.
IMPACTS
The agencies anticipate that the impacts of the proposed rule would be most significant for the Clean
Water Act Section 404 program and would reduce the number of Section 404 permits issued and
acres of wetland impacts mitigated relative to the baseline. West Virginia has already lost over 80% of
the wetlands that were historically present, and this move by the federal government could eliminate
Clean Water Act protections from 96% of their remaining wetlands.
While the agencies expect the proposed rule to be deregulatory and have cost savings, they have not
quantified them. Furthermore, the proposed rule gives almost no consideration to the cost of
increased pollution to communities around the country. The cost savings gleaned could not possibly
surmount the substantial, tangible, and quantifiable benefits of clean water under the current
regulatory scope.
Clean water brings substantial economic benefits to our regional, state, and local economies. The
commercial seafood industry in Maryland and Virginia combined equals $2.8 billion in sales, $490
million in income, and nearly 20,000 jobs to the local economy every year. According to the
Pennsylvania Fish and Boat Commission, recreational fishing in Pennsylvania generates over $1.6
billion annually. The commercial seafood industry in Maryland and Virginia combined equals $2.8
billion in sales, $490 million in income, and nearly 20,000 jobs to the local economy each year. Efforts
to improve our water quality also provide benefits to our agricultural economy. Fully funding the farm
pollution-reduction practices needed to restore the Chesapeake Bay would inject $655 million
annually into the region’s economy, including $269 million per year in higher earnings for businesses
and workers. These programs are very popular with farmers and are oversubscribed year after year.
The ecosystem services of wetlands are also unquantified in the proposed rule’s cost benefit analysis.
Wetlands provide flood protection and water filtration services, adaptive resiliency for stormwater, as
well as the cleanliness of recreational activities like swimming, boating, and fishing. The proposed
WOTUS rule could result in the loss of between 60 to 84 percent of wetlands nationwide. In our
collective watersheds, the proposed changes in wetland protections would strip away some of the
most effective natural infrastructure we have for preventing floods. Wetlands filter pollution,
recharge groundwater, protect wildlife habitat, and reduce flooding. Once wetlands are gone, they
don’t come back without substantial restoration costs of their own. When wetlands disappear,
communities must build costly artificial systems to replace the functions they once provided for free.
Without intermittent streams and wetlands to serve as natural buffers, floodwaters rise faster and hit
harder, leaving homeowners, businesses, and taxpayers with massive bills for damage, cleanup, and
emergency response.CONCLUSION
If the agencies follow through with their predetermined plan7 to revise the WOTUS definition in
pursuit of their current deregulatory policy objectives, it will be the fifth time since 2015 that the
agencies will improperly attempt to create a novel regulatory interpretation of the Clean Water Act
that would eliminate water quality protections for the nation’s waters contrary to the intent of
Congress. As a unanimous Supreme Court determined in United States v. Riverside Bayview Homes,
“[p]rotection of aquatic ecosystems, Congress recognized, demanded broad federal authority to
control pollution, for ‘[w]ater moves in hydrologic cycles and it is essential that discharge of pollutants
be controlled at the source.’ . . . [This is precisely why] Congress chose to define the waters covered
by the Act broadly.”8 The agencies do not possess the authority to exclude waters that Congress
intended to cover from the definition of “waters of the United States” to achieve their own
independent and ever-shifting bureaucratic policy goals.
Instead of pursuing this course of action, we urge the agencies to provide clarity and certainty, as well
as consistency with the law, by maintaining the protections provided in the September 2023
regulatory definition. Any revisions to the regulatory definition, guidance, memoranda, or other
administrative actions must fully encompass waters necessary to adequately protect the chemical,
physical, and biological integrity of the nation’s waters as intended by Congress. A clear WOTUS
definition that protects the integrity of the nation’s waters greatly benefits the public, farmers,
businesses, landowners, and state and tribal governments in myriad ways, including reduced
compliance and production costs. Constantly reinterpreting this more than 50-year-old law to suit the
most recent bureaucratic objectives and justify the adoption of yet another new WOTUS definition
creates uncertainty, benefits no one, and endangers everyone.
Respectfully submitted,Robin Broder, Acting Executive Director
Waterkeepers Chesapeake
Silver Spring, Maryland
Ted Evgeniadis, Executive Director & Lower Susquehanna Riverkeeper
Lower Susquehanna Riverkeeper Association
Betsy Nicholas, President
Dean Naujoks, Potomac Riverkeeper
Brent Walls, Upper Potomac Riverkeeper
Mark Frondorf, Shenandoah Riverkeeper
Potomac Riverkeeper NetworkMatt Pluta, Choptank Riverkeeper
Annie Richards, Chester Riverkeeper
Ben Ford, Miles-Wye Riverkeeper
Zack Kelleher, Sassafras Riverkeeper
ShoreRivers, Inc.
Elle Bassett, South, West & Rhode Riverkeeper
Arundel Rivers Federation
Theaux M. Le Gardeur, Executive Director and Gunpowder Riverkeeper
Gunpowder Riverkeeper
Alice Volpitta, Baltimore Harbor Waterkeeper
Blue Water Baltimore
Trey Sherard, Anacostia Riverkeeper
Anacostia Riverkeeper
Taylor Swanson, Executive Director & Assateague Coastkeeper
Assateague Coastal Trust
Tom Dunlap, James Riverkeeper
James River Association
John Zaktansky, Executive Director & Riverkeeper
Middle Susquehanna Riverkeeper Association
Sara Caldes, Severn Riverkeeper
Severn Riverkeeper Association
Evan Isaacson, Senior Attorney, Director of Research
Chesapeake Legal Alliance