NEWS: Sen. Schiff, 15 Senate Democrats Raise Alarm on EPA’s New Rule Abandoning Federal Water Pollution Protections

EPA's new rule slashes the scope of waters that fall under federal pollution protections, rolling back decades of water quality progress

Washington, D.C. - Today, U.S. Senator Adam Schiff (D-Calif.), Ranking Member of the Senate Environment and Public Works' Fisheries, Water, and Wildlife Subcommittee, led 15 Senate Democrats in opposing the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE)'s new Waters of the United States (WOTUS) proposed rule which threatens to undo significant progress made to restore the quality of our nation's waters.

The new rule limits the definition of waters, including removing coverage for waters that are not wet for the duration of an undefined "wet season" and excluding all waters but those with continuous surface connections. This leaves water bodies vulnerable to pollution, flood, and damage, and leaves communities without clean drinking water.

"The proposed rule is legally unnecessary, scientifically unsound, and will harm public and environmental health by allowing more harmful chemicals into our waterways. We urge you to abandon this rulemaking and refocus your efforts on making Americans healthier," the Senators wrote.

In a letter to EPA Administrator Lee Zeldin and U.S. Assistant Secretary of the Army (Civil Works) Adam Telle, the Senators express deep concern over the significant harm of stripping federal protections for the nation's wetlands that don't fall under the new WOTUS rule. Over 50 years ago, Congress set the precedent by passing the Clean Water Act (CWA) - with strong bipartisan votes - to protect America's water resources and safeguard our nation's public health. EPA's new proposal would further rollback these safeguards that were already weakened in the Supreme Court's 2023 decision in Sackett v. EPA.

"We all drink and use water. Municipal water utilities and their ratepayers-the American people-will disproportionately bear the economic burden of remediating the poorer quality water this rule will cause. Moreover, flood risk management and disaster response services will become increasingly overburdened from the compounding impacts of cumulative upstream watershed degradation," the Senators continued.

"As proposed, the 2025 draft WOTUS rule ignores science, removes vast swaths of aquatic areas from federal jurisdiction, fails to protect water quality, and passes the costs on to the American taxpayer. It does not simplify the ability of the agency to identify jurisdictional waters. There are reasonable policies we could pursue to simplify permitting and create union jobs in this country, but this proposed rule does not represent a viable path forward," the Senators concluded.

In addition to Schiff, the letter was signed by Senators Sheldon Whitehouse (D-R.I.), Angela Alsobrooks (D-Md.), Richard Blumenthal (D-Conn.), Cory Booker (D-N.J.), Tammy Duckworth (D-Ill.), Kirsten Gillibrand (D-N.Y.), Martin Heinrich (D-N.M.), Edward Markey (D-Mass.), Jeff Merkley (D-Ore.), Alex Padilla (D-Calif.), Jack Reed (D-R.I.), Lisa Blunt Rochester (D-Del.), Bernie Sanders (I-Vt.), Chris Van Hollen (D-Md.), and Ron Wyden (D-Ore.).

The full text of the letter can be found here and below.

Dear Administrator Zeldin and Assistant Secretary Telle:

In 1972, after the Cuyahoga River caught fire more than a dozen times and the Potomac River choked the nation's capital with pollution, Congress passed the Clean Water Act (CWA) with strong bipartisan votes to protect America's water resources and safeguard our nation's public health. Yet, six decades later, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) have proposed a new Waters of the United States (WOTUS) draft rule that threatens to undo the significant progress our nation has made to restore the quality of our nation's waters. The proposed rule is legally unnecessary, scientifically unsound, and will harm public and environmental health by allowing more harmful chemicals into our waterways. We urge you to abandon this rulemaking and refocus your efforts on making Americans healthier.

The proposed 2025 WOTUS rule purports to implement the 2023 Sackett v. EPA decision, in which the 5-4 Supreme Court majority substituted its own faulty understanding of science for EPA's (Sackett v. EPA, 598 U.S. 651 (2023)). On the majority's new definition in Sackett, Justice Brett Kavanaugh even wrote, "In my view, the Court's 'continuous surface connection' test departs from the statutory text, from 45 years of consistent agency practice, and from this Court's precedents." The Sackett ruling determined that wetlands lacking a continuous surface connection to a year-round or flowing body of water shall not be considered WOTUS, even though such waters may have significant effects on the quality of permanent bodies of water. In doing so, Sackett stripped protections for anywhere between 60 to 80 percent of America's wetlands, depending on ultimate implementation. And yet, the administration's new 2025 proposed rule goes even further than Sackett's draconian definition, excluding many types of headwaters, tributaries, and ephemeral or intermittent streams and water bodies from WOTUS jurisdiction as well.

EPA's own analysis estimates that only 19 percent of the nation's existing nontidal wetlands would fall under WOTUS jurisdiction if the 2025 rule is codified as proposed, while other studies find this number could range from 9 percent to 0 percent. The potential impact on other headwaters, tributaries, and ephemeral water bodies remains to be evaluated.

By excluding all waters but those with continuous surface connections and which abut water bodies, the proposed rule would improperly exclude from federal jurisdiction many discharges that are functionally equivalent to discharges into jurisdictional waters. The ecology of these important water bodies is inextricably tied to the water quality of traditionally navigable waters. These water bodies are the capillaries and kidneys of the nation's watersheds; when they are polluted or filled in, harm flows downstream in the form of higher nutrient, sediment, and toxics loads, all of which cumulatively degrade water quality throughout watersheds. This means more flooding, more harmful algal blooms, and less filtration of pollutants. The new definition would also absolve upstream polluters from the obligation to adopt responsible prevention measures, and would instead shift the burden of managing pollution, flood, and drought onto the shoulders of those who work and live downstream.

The administration's proposed rule would cause EPA and USACE to fail to meet Congress's mandate, and Administrator Zeldin's stated primary objective: to maintain clean water for all Americans.

We all drink and use water. Municipal water utilities and their ratepayers-the American people-will disproportionately bear the economic burden of remediating the poorer quality water this rule will cause. Moreover, flood risk management and disaster response services will become increasingly overburdened from the compounding impacts of cumulative upstream watershed degradation. The proposed rule considers benefits to developers yet makes no attempt to estimate or compare those theoretical benefits to the other costs to society from the degradation that will occur to drinking water sources and aquatic ecosystems across the country. Further, this new rule jeopardizes wetlands and wildlife habitat that many Americans enjoy for outdoor recreation and wildlife watching.

EPA stated in the announcement of this proposed rule "support[s] the role of states and tribes as primary regulators managing their own land and water resources." Yet states are not helped by the federal government's abdication of its statutory responsibilities. Because of EPA's abandonment of responsibility to protect clean water, more of the onus will fall on the states to enforce state-level protections of clean water-protections which can vary greatly state-by-state. States will be forced to pick up the slack, which runs the risk of straining state budgets and environmental enforcement resources.

As proposed, the 2025 draft WOTUS rule ignores science, removes vast swaths of aquatic areas from federal jurisdiction, fails to protect water quality, and passes the costs on to the American taxpayer. It does not simplify the ability of the agency to identify jurisdictional waters. There are reasonable policies we could pursue to simplify permitting and create union jobs in this country, but this proposed rule does not represent a viable path forward. We urge you to immediately abandon this unnecessary and statutorily unfaithful rulemaking that will harm public health, and to instead refocus your efforts on protecting the American people's right to clean and safe water.

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