The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers have released a proposed rule redefining “Waters of the United States” (WOTUS) in response to the Supreme Court’s 2023 decision in Sackett v. EPA. This definition determines which waters fall under federal jurisdiction through the Clean Water Act.
For the first time, the proposed rule explicitly states that groundwater is not considered a WOTUS and will remain under state authority. NGWA has long advocated for this exclusion, actively lobbying the EPA and Congress to ensure state management of groundwater remains the standard.
The connection between groundwater and surface water has long been a legal issue at both the state and federal levels. In 2019, NGWA filed a join amicus brief with the Water Systems Council during the Maui County vs. Hawai’i Wildlife Fund Supreme Court Case and would later publish a white paper (free to both members and nonmembers) after the courts ruling.
“This clarification has been a top priority for NGWA, and something we’ve championed for years,” said NGWA CEO Terry S. Morse, CAE, CIC. “It shows the power of persistent advocacy in D.C., and I’m thankful to all of our members who helped make this happen.”
Under the new proposal, federal oversight would primarily cover larger, more permanent bodies of water and wetlands with a continuous surface connection. Groundwater, isolated wetlands, and many smaller streams would no longer fall under federal regulation and would continue to be managed by state and local governments.
This approach is particularly significant for groundwater professionals and water users, as it reinforces the historic role of states in managing groundwater resources while clarifying federal jurisdiction for surface waters.