SWS Comment Letter - Updated Definition of “Waters of the United States” Proposed Rule, Docket No. EPA-HQ-OW-2025-0322

https://sws.org/resource/resmgr/EPA-HQ-OW-2025-0322_SWScomme.pdf   

American Fisheries Society • Association for the Sciences of Limnology and Oceanography • Coastal and Estuarine Research Federation • Freshwater Mollusk Conservation Society • International Association for Great Lakes Research • North American Lake Management Society • Phycological Society of America • Society for Freshwater Science • Society of Wetland Scientists

March 18, 2021

The Honorable Joseph R. Biden, Jr.
President of the United States
The White House
1600 Pennsylvania Avenue, NW
Washington, DC 20500

Dear President Biden:

Thank you for your commitment to reviewing the Navigable Waters Protection Rule (NWPR) that was finalized by the Environmental Protection Agency and U.S. Army Corps of Engineers in April 2020 and became effective in June 2020.1 This rule established a very narrow definition of “Waters of the U.S.” (WOTUS) under the Clean Water Act (CWA) that resulted in the loss of protections for millions of stream miles and acres of wetlands, including five types of isolated wetlands with ecological value disproportionate to their area. These losses have led to dire consequences for fish, fisheries, wildlife, watersheds, water quality and supply, flood control, as well as the people and economies that rely on them.

In the face of climate change, it has never been more important to protect streams and wetlands that store carbon, provide critical habitat for fish and wildlife, provide flood storage, and maintain downstream water quality and quantity.2, 3, 4, 5 The NWPR significantly deviates from previous interpretations of the CWA and largely ignores and oversimplifies science.6 We greatly appreciate your recent Executive Order 13990 establishing your Administration’s policy to “listen to the science.” With that in mind, we urge you to quickly re-establish a science-based definition of WOTUS that will allow the CWA to fulfill its mandate to restore and maintain the chemical, physical, and biological integrity of the nation’s waters.

The Consortium of Aquatic Science Societies (CASS) is composed of nine professional societies representing almost 20,000 individuals with diverse knowledge of the aquatic sciences. Our members work in the private sector, academia, nongovernmental organizations, and various tribal, state, and federal agencies. We support the development and use of the best-available science to sustainably manage our freshwater, estuarine, coastal, and ocean resources to the benefit of the U.S. economy, environment, and public health and safety.

CASS is on the record as strongly opposing the NWPR as inconsistent with more than a half century of scientific research that demonstrates that the integrity of “traditionally navigable” waters fundamentally depends on ephemeral (i.e., flow only after precipitation events), intermittent (i.e., flow seasonally), and perennial (flow year-round) streams, as well as on wetlands located both within (i.e., floodplain wetlands) and outside (i.e., non-floodplain or geographically isolated wetlands) of floodplains.7 CASS fully supports the definition of WOTUS in the 2015 Clean Water Rule (CWR),8 which was overwhelmingly supported by peer-reviewed science.

The comprehensive Environmental Protection Agency scientific report that accompanied the 2015 CWR, “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence,”9 synthesized more than 1,200 peer-reviewed publications. Along with input from 49 experts and a 25-member panel of the EPA’s Scientific Advisory Board (SAB), this report provided the technical basis for the 2015 CWR. Substantial additional literature has emerged that reaffirms the report and the 2015 CWR.10, 11, 12, 13, 14, 15, 16 We stand by this science.

The loss of protections for our nation’s waters under the NWPR threatens fish, fisheries, wildlife, aquatic ecosystems, and the human populations that rely on them and places the highly valued ecosystem services that are derived from these systems in great peril.11, 17

Unlike the 2015 definition of WOTUS that established protection based on the connectivity of waters, the NWPR defines a WOTUS in terms of its direct, consistent surface flows with traditionally navigable waters. This is inconsistent with the full mandate of the CWA and is a critical shortcoming of the NWPR since many waters that play an important part in maintaining ecological integrity flow ephemerally or intermittently and fluctuate substantially throughout any typical year.

Rather than protecting our waters’ integrity, the NWPR intensifies their vulnerability to climate change and extensive and intensive land uses such as agriculture, livestock grazing, forestry, mining, and urbanization.6, 17 Climate change is warming rivers, lakes, streams, and wetlands and significantly altering precipitation patterns (both increasing and decreasing precipitation depending on season and location) throughout America and is accelerating and intensifying water-quality problems, altering the functions of aquatic ecosystems, and impacting species’ ranges and survival.18 These impacts to our nation’s waters extend from small lakes and streams to large rivers like the once perennial Gila, lower Colorado, and Río Grande rivers. These changes are not just theoretical; scientists are already seeing massive shifts in seasonal flows, stream length, and surface flows from climate change and land use shifts, water withdrawal, and groundwater pumping.5, 11

By length, approximately half of stream channels in the conterminous United States are ephemeral, and 50% of these are no longer protected under the NWPR; thus, at least 25% of the nation’s stream channels have now lost protection.19 Removing previous protections from millions of miles of these ephemeral headwater streams will only exacerbate the transformation of historically perennial streams and rivers into highly vulnerable intermittent and ephemeral streams and rivers. The NWPR reduces protections across the nation, with some of the strongest impacts in arid areas of the country, such as in many states in the Southwest and Southern Plains. As such, the loss of CWA protections will be most acute where water quantity and quality issues already threaten the sustainability of watersheds and communities.

The NWPR also abandons the bipartisan and long-standing “No Net Loss of Wetlands” national policy, first established by President George H. W. Bush, by excluding nonfloodplain wetlands, or wetlands that are not connected at the surface to navigable waters, from CWA protection. Relying on a surface connection of a wetland to navigable waters to establish CWA jurisdiction ignores the important biological and chemical connections with navigable waters that allow these wetlands to play an outsized role in protecting water quality, reducing flooding and pollution, providing fish and wildlife habitat, and storing carbon.20

Science-based Clean Water Act protections and aggressive action to reduce greenhouse gas emissions can help to protect the integrity of aquatic ecosystems, maintain crucial ecosystem services for sequestration and storage of carbon, improve climate resilience, and promote our progress towards the drawdown of carbon from the atmosphere.18 Land and water-based conservation solutions are a critical part of a multi-faceted effort to sequester carbon, which will help to ensure that our nation’s rivers, lakes and streams, forests, grasslands, wetlands, and coastal ecosystems are more resilient to the impacts of climate change.21, 22

We urge you to quickly establish a science-based definition of WOTUS that will allow the CWA to fulfill its mandate to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. We ask for your continued leadership in working towards significant reductions in greenhouse gas emissions to avoid the worst impacts of climate change on fish, wildlife, aquatic resources including wetlands, and the communities that depend on them. We look forward to working together on these critically important issues.

Sincerely,

American Fisheries Society
Association for the Sciences of Limnology and Oceanography
Coastal and Estuarine Research Federation
Freshwater Mollusk Conservation Society
International Association for Great Lakes Research
North American Lake Management Society
Phycological Society of America
Society for Freshwater Science
Society of Wetland Scientists

1. U.S. Environmental Protection Agency and U.S. Army Corps of Engineers. 2020. The navigable waters protection rule: definition of “waters of the United States.” Federal Register 85:77(21 April 2020):22250.
2. Bradshaw, J. A., P. R. Erlich, A. Beattie, G. Ceballos, E. Crist, J. Diamond, R. Dirzo, A. H. Ehrlich, J. Harte, M. E. Harte, G. Pyke, P. H. Raven, W. J. Ripple, F. Saltre, C. Turnbull, M. Wackernagel, and D. T. Blumstein. 2021. Underestimating the challenges of avoiding a ghastly future. Frontiers in Conservation Science 1:615419.
3. Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES). 2019. Summary for policymakers of the global assessment report on biodiversity and ecosystem services of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services. IPBES secretariat, Bonn, Germany.
4. Ripple, W. J., C. Wolf, T. M. Newsome, P. Barnard, and W. R. Moomaw. 2020. World scientists’ warning of a climate emergency. Bioscience 7:8–12.
5. American Fisheries Society, American Institute of Fishery Research Biologists, American Society of Ichthyologists and Herpetologists, American Water Resources Association, Asian Fisheries Society, Asociación de Oceanólogos de Mexico, A. C., Asociación Internacional de Hidrogeologos – Mexico Chapter et al. 2020. Statement of world aquatic scientific societies on the need to take urgent action against human-caused climate change, based on scientific evidence. Available: https://climate.fisheries.org/world-climate-statement/. (February 2021).
6. Sullivan, S. M. P., M. C. Rains, A. D. Rodewald, W. W. Buzbee, and A. D Rosemond. 2020. Distorting science, putting water at risk. Science 369:766–768.
   that in mind, we urge you to quickly re-establish a science-based definition of WOTUS that will allow the CWA to fulfill its mandate to restore and maintain the chemical, physical, and biological integrity of the nation’s waters.
7. Letter from the Consortium of Aquatic Sciences to Administrator Wheeler and Assistant Secretary James re: scientific societies’ comments on proposed rule – revised definition of “waters of the United States” (84 FR 4154; Docket ID No. EPA-HQOW-2018-0149). Available: https://www.esa.org/wp-content/uploads/2019/04/2019_4_10-Science-Societies-WOTUS-Letter-Final.pdf. (February 2021).
8. U.S. Army Corps of Engineers and U.S. Environmental Protection Agency. 2015. Clean water rule: definition of “waters of the United States.” Federal Register 80(29 June 2015):37054.
9. U.S. Environmental Protection Agency. 2015. Connectivity of streams and wetlands to downstream waters: a review and synthesis of the scientific evidence (final report). U.S. Environmental Protection Agency, EPA/600/R-14/475F, Washington, D.C.
10. Cohen, M. J., I. F. Creed, L. Alexander, N. B. Basu, A. J. K. Calhoun, C. Craft, E. D’Amico, E. DeKeyser, L. Fowler, H. E. Golden, J. W. Jawitz, P. Kalla, L. K. Kirkman, C. R. Lane, M. Lang, S. G. Leibowitz, D. B. Lewis, J. Marton, D. L. McLaughlin, D. M. Mushet, H. Raanan-Kiperwas, M. C. Rains, L. Smith, and S. C. Walls. 2016. Do geographically isolated wetlands influence landscape functions? Proceedings of the National Academy of Sciences of the United States of America 113:1978–1986.
11. Colvin, S. A. R., S. M. P. Sullivan, P. D. Shirey, R. W. Colvin, K. O. Winemiller, R. M. Hughes, K. D. Fausch, D. M. Infante, J. D. Olden, K. R. Bestgen, R. J. Danehy, and L. Eby. 2019. Headwater streams and wetlands are critical for sustaining fish, fisheries, and ecosystem services. Fisheries 2:73–91.
12. Fritz, K. M., K. A. Schofield, L. C. Alexander, M. G. McManus, H. E. Golden, C. R. Lane, W. G. Kepner, S. D. LeDuc, J. E. DeMeester, and A. I. Pollard. 2018. Physical and chemical connectivity of streams and riparian wetlands to downstream waters: a synthesis. JAWRA (Journal of the American Water Resources Association) 54:323–345.
13. Harvey, J., J. Gomez-Velez, N. Schmadel, D. Scott, E. Boyer, R. Alexander, K. Eng, H. Golden, A. Kettner, C. Konrad, R. Moore, J. Pizzuto, G. Schwartz, C. Soulsby, and J. Choi. 2018. How hydrologic connectivity regulates water quality in river corridors. JAWRA (Journal of the American Water Resources Association) 54:369–381.
14. Leibowitz, S. G., P. J. Wigington, Jr., K. A. Schofield, L. C. Alexander, M. K. Vanderhoof, and H. E. Golden. 2018. Connectivity of streams and wetlands to downstream waters: an integrated systems framework. JAWRA (Journal of the American Water Resources Association) 54:298–322.
15. Rains, M. C., S. G. Leibowitz, M. J. Cohen, I. F. Creed, H. E. Golden, J. W. Jawitz, P. Kalla, C. R. Lane, M. W. Lang, and D. L. McLaughlin. 2016. Geographically isolated wetlands are part of the hydrological landscape. Hydrological Processes 30:153–160.
16. Schofield, K. A., L. C. Alexander, C. E. Ridley, M. K. Vanderhoof, K. M. Fritz, B. C. Autrey, J. E. DeMeester, W. G. Kepner, C. R. Lane, S. G. Leibowitz, and A. I. Pollard. 2018. Biota connect aquatic habitats throughout freshwater ecosystem mosaics. JAWRA (Journal of the American Water Resources Association) 54:372–399.
17. Declaration of Dr. S. Mažeika Patricio Sullivan, California v. Wheeler (N.D. Cal.), Case 3:20-cv-03005-RS, Document 30-18.
18. Moomaw, W. R., G. L. Chmura, G. T. Davies, C. M. Finlayson, B. A. Middleton, S. M. Natali, J. E. Perry, N. Roulet, and A. E. Sutton-Grier. 2018. Wetlands in a changing climate: science, policy and management. Wetlands 38:183–205.
19. Fesenmyer, K. A., S. J. Wenger, D. S. Leigh, and H. M. Neville. In press. Large portion of USA streams lose protection with new interpretation of Clean Water Act. Freshwater Science, doi.org/10.1086/713084.
20. Sullivan, S. M. P., M. C. Rains, and A. D. Rodewald. 2019. The proposed change to the definition of “waters of the United States” flouts sound science. Proceedings of the National Academy of Sciences of the United States of America 116:11558–11561.

The racism we have witnessed most recently in the United States is, unfortunately, not new. It is part of a lengthy history of racism in the United States and globally. We may be tempted to look away from this difficult topic but we cannot – this scourge is a reality that affects our members, the wetland community we all share, and well beyond. A safe, respectful, and welcoming environment for all is the expectation, and we will continue to work until it is the norm.

We need everyone in the Society to stand at the helm. SWS programs, such as the SWS Multicultural Mentoring Program (SWaMMP), are the seeds of change needed to counteract racial injustice while also supporting a healthy and functioning planet. Protection and restoration of biodiversity in the natural world must go hand in hand with celebration of human diversity. Inclusion is the key to success in our broader community, our science, and conservation of the beautiful - yet vulnerable world - in which we live.

SWS extends our condolences to the families of George Floyd, Ahmaud Arbery, Breonna Taylor and the many countless victims before them. Our arms are open to the culturally rich and diverse communities in the US and throughout the world.

We join the cries for social justice and pledge, as a Society, to be a haven, a vehicle for change, and a beacon of light against racism and social injustice…today, tomorrow, and into the future.

SWS member Professor Royal Gardner (Director of the Institute for Biodiversity Law and Policy at Stetson Law), who won the 2018 SWS President's Service Award for his work on behalf of SWS with regard to the WOTUS Clean Water Rule, led the team of attorneys including Erin Okuno (Foreman Biodiversity Fellow at Stetson Law), Dr. Steph Tai (Associate Professor of Law at University of Wisconsin Law School), Kathleen Gardner, and Christopher Greer (Park Jensen Bennett LLP), who prepared the July 24, 2018 amicus curiae brief. The team filed this brief in the U.S. District Court for the District of North Dakota. This team also filed the May 7, 2018 amicus curiae brief on behalf of SWS in the U.S. District Court for the Southern District of New York.SWS amicus curiae briefs can be read at: http://sws.org/Resources/letters-of-comment.html.

The Society of Wetland Scientists (SWS) is a leading professional association of wetland and aquatic scientists around the world, including the United States. Established in 1980, SWS advances scientific and educational objectives related to wetland science and encourages professional standards in all activities related to wetland science. SWS has over 3,000 members and publishes a peerreviewed quarterly journal, Wetlands, concerned with all aspects of wetland biology, ecology, hydrology, water chemistry, soil, and sediment characteristics. SWS supports the use of the best available scientific information in making decisions on the use and management of wetland and aquatic resources. As a scientific society, SWS weighs in on the definition of “waters of the United States” under the Clean Water Act (CWA), 33 U.S.C. §1251 et seq. (2012), relying on scientific research and experience with tributaries and geographically proximate adjacent waters. This brief elaborates on the scientific basis behind efforts to address human activities that alter the integrity of aquatic ecosystems. Damage to these systems can affect society in a number of ways, including: harming human welfare and property via flooding, impairing human health via water pollution, loss of recreational opportunities, and threatening species, including commercial species harvested in fisheries, via water pollution and a loss of connectivity. Read more.

The Clean Water Rule was designed to protect the streams and wetlands on which Americans' health and economy depend. The U.S. Environmental Protection Agency and U.S. Army Corps of Engineers are now considering repealing that rule. While no repeal has been finalized, the agencies added an "applicability date" to the Clean Water Rule in February of 2018, suspending it for two years.

Professor Royal Gardner and attorney Erin Okuno from the Institute for Biodiversity Law and Policy at Stetson University College of Law, along with a team of attorneys including Dr. Steph Tai, Kathleen Gardner, and Christopher Greer, wrote the brief on SWS's behalf.

"Every aspect of the Clean Water Act's implementation requires the use of science," said Stetson Law Professor Royal Gardner. "When the agencies disregard science, their judgments deserve no deference."

"The ongoing attempt, if successful, by the EPA and USACE to undermine the scientific basis of the Clean Water Act, specifically to restrict the definition of what is a water of the United States, would have a significant impact on the future of wetlands in the US. SWS will do everything in its power to ensure that science not politics will continue to be the foundation for American wetland regulations and policies," said Arnold van der Valk, President, SWS.

In accordance with the SWS Mission, Vision, and Strategic Plan, SWS works to "promote sound science in wetland policy and stewardship" and to promote "science-based management and sustainability of wetlands." SWS has taken many steps over a number of years to support the Clean Water Rule since its inception, as the Clean Water Rule is based on the best available science, including an analysis of over 1,200 peer-reviewed scientific publications.

Learn more about the amicus curiae brief and the Clean Water Rule Suspension Case by listening to Monday's interview with Professor Royal Gardner and SWS Immediate Past President Gillian Davies on Tampa Bay radio station WMNF or by reading the InsideEPA article.

An agency must provide a reasoned explanation when promulgating or amending a rule. An agency’s implausible explanation or its failure to consider relevant and significant aspects of a problem renders a rulemaking arbitrary and capricious. Because the EPA and Corps refused to consider the scientific basis of the Clean Water Rule, including the most current scientific understanding of how streams and wetlands contribute to the chemical, physical, and biological integrity of downstream waters, the Suspension Rule is arbitrary and capricious. More broadly, all major EPA policy decisions since the agency’s inception have required the use of science. Science is critically important to furthering the goals of the CWA, and this Court should hold the EPA and Corps accountable for failing to consider science in their decisions. The agencies cannot so blithely disregard science related to the chemical, physical, and biological integrity of the Nation’s aquatic resources. Continue reading.

On behalf of the Society of Wetland Scientists (SWS), an international expert organization with over 3,000 members, we would like to emphasize the pressing need for Lake Ohrid and the full extent of Studenchishte Marsh to be designated as a Wetland of International Importance under the Ramsar Convention and to endorse the E.D.E.N./Ohrid SOS initiative to achieve this target. We believe it will be of significant social, environmental, and economic value to the Republic of Macedonia. Continue reading.

Dear Administrator Pruitt and Deputy Assistant Secretary Lamont:

These comments are submitted regarding the proposed rule, Definition of “Waters of the United States” - Recodification of Pre-existing Rules, EPA-HQ-OW-2017-0203; FRL-9962-34-OW, published in the Federal Register on July 27, 2017. On behalf of the approximately 3,000+ members of the Society for Wetland Scientists (SWS). Our society strongly opposes the proposed rule to rescind the definition of “Waters of the United States” (WOTUS) as promulgated by the Agencies in 2015 (Clean Water Rule: Definition of Waters of the United States; 80 FR 37054, June 29, 2015) (2015 CWR). Continue reading.

"The following participants at the Society of Wetland Scientists 2017 Annual Meeting encourage policy makers in all countries to continue their collaborative efforts to develop and implement international policies, such as the Paris Climate Agreement, to mitigate global climate change and, in doing so:

• Ensure the protection of existing carbon banks in wetlands and encourage carbon sequestration;
• Maintain or restore wetlands for their biodiversity and ecosystem services, including climate resiliency;
• Request all wetland managers and scientists to share this statement and support local to global efforts to combat climate change for the betterment of humankind."

SWS wetland scientists Gail Chmura, Gillian Davies, Max Finlayson, Beth Middleton, Sue Natali, Jim Perry, Nigel Roulet, Ariana Sutton-Grier and climate scientist William Moomaw have submitted an article titled, "The Relationship Between Wetlands and a Changing Climate" to the Wetlands journal. This article reviews research on how wetlands function in the global carbon cycle, the climate resiliency and adaptation services provided by wetlands, and the particular vulnerabilities that wetlands face as our climate changes. The article identifies policies and management strategies at all scales (local to global) that foster wetland and societal climate resilience/adaptation, protect ecosystem carbon stored in wetlands, and protect the future capacity of wetlands to sequester carbon from the atmosphere.

The Consortium of Aquatic Scientific Societies (CASS) is comprised of six professional societies representing diverse knowledge of the aquatic sciences. CASS members include the: American Fisheries Society, Association for the Sciences of Limnology and Oceanography, Coastal and Estuarine Research Federation, Phycological Society of America, Society for Freshwater Science, and Society of Wetland Scientists. Our collective membership totals almost 20,000 individuals that span the private sector, academia, non-governmental organizations, and various tribal, state, and federal agencies. The CASS organizations represent professionals who combine deep subject-matter expertise, a commitment to independent objectivity, and the critical review of environmental information, along with a passion for the natural places and resources that form the foundation of American greatness. We support the development and use of the best available science to sustainably manage our freshwater, estuarine, coastal, and ocean resources to the benefit of the U.S. economy, environment, and public health and safety.

CASS writes in strong support of the Environmental Protection Agency (EPA), National Aeronautics and Space Administration (NASA) and National Oceanic and Atmospheric Administration (NOAA) programs that support the research, conservation, restoration, and sustainable use of aquatic ecosystems required by all U.S. citizens, who rely on clean and abundant water for their health and well-being.

Read the full letter to the House in support of the EPA.

Read the full letter to the Senate in support of the EPA.

Read the full letter to the House in support of NASA.

Read the full letter to the Senate in support of NASA.

Read the full letter to the House in support of NOAA.

Read the full letter to the Senate in support of NOAA.

Mayor CHEN, Chu
Mayor of Kaohsiung City Government
Taiwan

5 October 2016

Dear Mayor Chen:

On behalf of the Society of Wetland Scientists (SWS), we would like to express our concern about the recent plans for the construction of Road 1-4 through the Jiading Wetland area. The Society has a world‐wide membership of more than 3,000 wetland professionals from 58 countries, whose mission is “to promote understanding, conservation, protection, restoration, science-based management, and sustainability of wetlands’’ (see www.sws.org). It has come to our attention that the Kaohsiung City government has decided to move ahead with plans to construct Road 1-4, which would reduce traveling time through the Jiading Wetland by only 90 seconds. The construction would dissect Jiading into two separate hydrologic units and endanger the natural functions and services of this wetland. We also understand that this is a deviation from the earlier established understanding that Jiading could be designated as a Taiwan Wetland of International Importance, using the Ramsar definition of designating wetlands of International Importance (see below) and be allowed to remain wholly intact. We hope to make you aware of the current services and benefits provided by the wetland to the people of the region and the potential impacts any change to the management/protection of this area might incur. Continue reading.

“The Society of Wetland Scientists is a non-profit, international organization of over 3,000 individuals who engage in research, science-based management, conservation, protection, restoration, and promotion of sustainability of wetlands around the world. Our membership includes employees of national, state, and local governments, academic institutions, NGO’s, and private consultants who are keenly interested in the actions and policies that affect wetlands and the variety of wildlife that make these diverse habitats their home. In 2008, we formed a Wildlife Section of the SWS that focuses on the relationships between wetland habitat dynamics and wildlife population dynamics. It is from this perspective that we offer these suggestions on how best to secure dedicated and sustained funding to support fish and wildlife conservation." Continue reading.