Below are comments submitted by Jonathan Fortner, President and CEO of the Lignite Energy Council, during the EPA and Army Corps of Engineers public hearing on the proposed Waters of the United States (WOTUS) rule in Bismarck on December 12.
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December 11, 2025
Good afternoon. My name is Jonathan Fortner, and I’m the President and CEO of the Lignite Energy Council here in North Dakota. We represent our state’s coal mines, power plants, and the thousands of workers and families who depend on them for reliable jobs and affordable electricity.
I appreciate the agencies holding this public meeting to get input from impacted stakeholders. From our perspective, this proposed rule is an improvement over the 2023 WOTUS rule, and we want to recognize that.
For the coal industry, clarity matters. We operate in rural areas with lots of drainage ditches, ponds, and low-lying land. Under past rules, small, isolated waters with no connection to traditionally navigable waters were considered WOTUS. Subjecting these waters to federal jurisdiction, instead of state jurisdiction as contemplated by the Clean Water Act, meant more permits, more consultants, and more delays.
This proposal moves things in the right direction by following the Supreme Court’s Sackett decision, focusing federal jurisdiction on waters that are actually permanent and areas that have a true surface connection to those waters. That’s a much more reasonable standard, and it helps restore common sense to how jurisdiction gets determined.
We also appreciate the clearer exclusions for ditches, waste treatment systems, groundwater, and prior converted farmland. These are everyday features around coal mines and power plants. They are already regulated by state environmental programs and other federal rules. Treating them as WOTUS on top of that has only added paperwork, cost, and confusion without improving environmental outcomes.
The agencies have also recognized that this proposal will reduce unnecessary permitting and compliance costs. That matters to our industry. Our facilities are already investing heavily in environmental upgrades, carbon capture planning, ash management improvements, and grid reliability projects. Money spent chasing permits for non-jurisdictional waters is money that can’t be spent on actual environmental improvements or keeping the power grid reliable.
That said, our biggest request is about implementation.
Even with better rules on paper, we still see wildly different interpretations from one Corps district to the next. What’s jurisdictional in one place isn’t in another. That lack of consistency creates major uncertainty for long-term investment.
So we urge EPA and the Army Corps to follow up this rule with:
- Strict and consistent application of the permanent-waters and surface-connection standards, and
- Guardrails to prevent the rule from slowly expanding in practice beyond what Sackett actually allows.
Coal facilities and infrastructure investments are planned decades in advance. We need rules that we can rely on not standards that shift depending on who is making the field call that day.
In closing, the Lignite Energy Council supports this proposal as a step forward from the 2023 rule. It’s consistent with the Clean Water Act, it provides better clarity, and it reduces unnecessary regulatory burden while still protecting federal waters.
We look forward to continuing to work with EPA and the Corps to make sure the final rule delivers what everyone wants: clean water, regulatory certainty, and a reliable energy future for our communities.
Thank you for the opportunity to comment.