The federal government is once again redrawing the line that decides which streams and wetlands get Clean Water Act protection. On September 4, EPA and the Army Corps of Engineers reopened public comment on the definition of “waters of the United States,” and small headwater streams, the kind our groups spend their weekends restoring, are exactly what is at stake.
EPA and the Army issued a supplemental notice on September 4, 2026 asking for public input on additional regulatory language for defining “waters of the United States,” on top of their 2025 proposed rule. Comments will be due 30 days after the notice publishes in the Federal Register, so the window is short and likely closes in early October.
What the agencies announced
The supplemental notice does not replace last year’s proposed rule. Instead, it puts a wider menu of policy options on the table for how the agencies will implement the Supreme Court’s 2023 decision in Sackett v. EPA, which narrowed federal jurisdiction to relatively permanent waters and wetlands with a continuous surface connection to them. The agencies say they want a durable definition that survives court challenges and ends decades of regulatory ping-pong between administrations.
“The EPA’s goal is a durable WOTUS definition that follows the law and ends burdensome regulatory uncertainty. Today’s action reflects our continued commitment to transparency and public input, ensuring we have fully considered a wide range of potential policy options.”
Lee Zeldin, EPA Administrator, September 4, 2026
Why the definition matters here
The phrase “waters of the United States” is the switch that turns federal Clean Water Act protection on or off for a given stream or wetland. When a water body falls outside the definition, filling it or discharging into it no longer requires a federal permit. The agencies point out that states and tribes can still regulate those waters themselves, and that is true, but it is also where the risk sits for our region. Pennsylvania, West Virginia, and Ohio each take a different approach to protecting small and intermittent streams, and state programs depend on budgets and political will that shift from year to year.
What watershed groups can do
Groups that want to weigh in should watch for the Federal Register publication date and get comments in early. Comments carry the most weight when they are specific: name the streams and wetlands your group works on, describe how they connect to larger rivers, and explain what losing federal jurisdiction would mean for your restoration investments. National partners like the Ohio River Basin Alliance and state groups such as WV Rivers Coalition typically circulate comment guidance once the docket opens.
Why it matters for the rest of us
The Upper Ohio basin is a landscape of headwaters. Thousands of miles of small tributaries feed the Allegheny, the Monongahela, the Youghiogheny, and the Ohio itself, and many of them run dry or shrink to a trickle in late summer. Where the federal line lands will determine whether those streams keep a permit backstop or depend entirely on state protection. A short comment from a small group that actually works in these watersheds is exactly the kind of real-world record this rulemaking needs.
Source: EPA news release, September 4, 2026. Quote verbatim from the release. Comment deadline is 30 days after Federal Register publication; check the docket at regulations.gov for the exact date.
