Agencies Host Public Listening Sessions on WOTUS Definition

As part of their proposed rule (Proposed Rule) to revise the regulatory definition of “waters of the United States” (WOTUS), the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) (collectively, Agencies) hosted three public comment sessions in which they received verbal comments from those in attendance. Two of the sessions were held in person with virtual attendance options – Bismarck, North Dakota on December 12, 2025, and Pittsburgh, Pennsylvania on December 15 – while the third session, on December 16, was fully virtual. EPA’s website contains additional details on the sessions, including draft agendas that list individuals who pre-registered to speak.

Background

As Nossaman previously detailed here, the Agencies are seeking to revise the definition of WOTUS and, thereby, what features would or would not be regulated under the Clean Water Act (CWA). Because of the significant regulatory burden associated with being subject to CWA jurisdiction and permitting, the definition of WOTUS has been frequently litigated. The U.S. Supreme Court has weighed in on four separate occasions, and the Agencies have revised the definition four times in roughly a decade.

The Proposed Rule generally focuses on limiting federal jurisdiction through narrowing what qualifies as a WOTUS. More information on the rulemaking can be found here.

The Sessions

The three sessions followed a similar format, although, as detailed below, the session held in North Dakota differed somewhat. Representatives from the Agencies opened each session by explaining the need for the Proposed Rule. The Agencies stated there were three objectives served by the Proposed Rule: fully implementing the U.S. Supreme Court’s decision in Sackett v. Environmental Protection Agency, 598 U.S. 651 (2023); cutting red tape to reduce costs; and protecting water quality by striking the right balance between state and federal authority. They also highlighted that they were seeking clarity, certainty and durability while requesting information on regional differences and tools to implement any final rule.

Each session lasted between 3 and 3.5 hours. Other than the opening remarks provided by the Agencies, the purpose of the sessions was for the Agencies to receive verbal comments on the Proposed Rule. As a result, the Agencies did not answer any questions from those in attendance. The sessions were recorded for internal use, although the Agencies plan to post transcripts to their respective websites.

The North Dakota session was organized and presented differently from the others. The first half of this session (i.e., pre-break) was hosted by U.S. Senator Kevin Cramer (R-N.D.) rather than by the Agencies. Senator Cramer, Senator John Hoeven (R-N.D.) and North Dakota Governor Kelly Armstrong all voiced support for the Proposed Rule and opposition to the existing framework. The commenters during this part of the session included local government officials and business leaders, all of whom voiced their support for the Proposed Rule. It was also unique because no list of commenters was provided. The second half of this session set the stage for the following sessions, as it was led by the Agencies, included a list of pre-registered speakers (both online and in-person) that was provided to the observers and provided an opportunity for other commenters after that.

The Pittsburgh session included the least participation of the three. Like the North Dakota session, it included a mix of online and in-person commenters, providing mixed views on the proposed rule.

The fully remote session was the most well attended, again providing mixed views on the proposed rule.

The Comments

Across the three sessions, there were roughly 75-100 commenters. The comments were split nearly 50-50, with a slight edge over all of the sessions in commenters opposed to the Proposed Rule. However, the North Dakota and Pittsburgh sessions included more supportive comments whereas the remote-only session included more opposition comments. Many commenters requested the comment deadline be extended given the importance of the rule and the various holidays that fall within the comment period.

The following list summarizes the most common points made by commenters and is not intended to be exhaustive:

Comments in support

• Common sense rule that can be instituted without the need for experts or lawyers and reduces uncertainty
• Consistent with Sackett and other WOTUS precedent
• Cuts red tape and lowers costs
• Returns jurisdiction back to states, tribes and landowners, all of whom know their land better than bureaucrats
• This rule is durable and should stop the back-and-forth of the past decade over WOTUS

Supporters often advocated for a strengthening of the Proposed Rule, listing the need for more clarity on significant terms such as continuous surface connection, relatively permanent and wet season. They also advocated for more clarity/a strengthening of essentially every exception that is listed, with ditches receiving the most attention. Supporters also advocated for tools and other guidance to assist with implementation.

Comments in opposition

• Ignores the science on these issues, in particular the impact of wetlands, ditches and other now-excluded areas that impact traditional navigable waters
  • Features like intermittent streams and ephemeral streams have a substantial impact on navigable waters
• Shifts costs away from those responsible onto the public
  • Especially the case with the loss of protection for wetlands, which provide flood control and other services that protect citizens
• Contrary to the intent of the Clean Water Act, which has overwhelming support in public polling
  • Polls show that people want more protection, not less
• Bad for public health
• Does not protect tribal rights
• A giveaway to polluters/developers/is political in nature

Next Steps

Written comments can be submitted until January 5, 2026, on www.regulations.gov; commenters must mention Docket ID EPA-HQ-OW-2025-0322.

Given the number of commenters on both sides of the Proposed Rule requesting changes to it, it seems likely that the final rule could differ in some meaningful ways from the proposal. One area that the Agencies discussed was ensuring that the Proposed Rule properly reflected local conditions; they expressed a desire to ensure that the definitions and guidelines in the rule were clear enough to easily implement while also being crafted in a way to take into account regional differences in watershed conditions. For example, the commenters from North Dakota were supportive of the fact that prairie potholes did not qualify as WOTUS (although some wanted that more explicitly stated in any final rule) while one from Alaska discussed that this rule did not align with physical watershed conditions in Alaska. Responding to these regional conditions is one of the many issues that are worth tracking as the Proposed Rule goes through the regulatory process.