[Federal Register Volume 90, Number 55 (Monday, March 24, 2025)]
[Proposed Rules]
[Pages 13428-13431]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-04649]
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
33 CFR Part 328
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 120
[EPA-HQ-OW-2025-0093; FRL-12683-01-OW]
WOTUS Notice: The Final Response to SCOTUS; Establishment of a
Public Docket; Request for Recommendations
AGENCY: Department of the Army, Corps of Engineers, Department of
Defense; and Environmental Protection Agency (EPA).
ACTION: Notice; announcement of listening sessions and solicitation of
stakeholder feedback.
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SUMMARY: The U.S. Environmental Protection Agency (EPA) and the
Department of the Army intend to engage with State and Tribal co-
regulators; industry and agricultural stakeholders; environmental and
conservation stakeholders; and the public on certain key topics related
to the implementation of the definition of ``waters of the United
States'' in light of the Supreme Court's 2023 decision in Sackett v.
Environmental Protection Agency. The agencies are committed to learning
from the past regulatory approaches--the pre-2015 regulations and
guidance, the 2015 Clean Water Rule, the 2020 Navigable Waters
Protection Rule, the 2023 Rule, and the Amended 2023 Rule--while
engaging with stakeholders before taking further administrative action
to provide any additional clarification to agency staff, co-regulators,
and the public on specific aspects of the definition of ``waters of the
United States.''
This notice includes an announcement of forthcoming listening
sessions on specific key topic areas to hear interested stakeholders'
perspectives on defining ``waters of the United States'' consistent
with the Supreme Court's interpretation of the scope of Clean Water Act
jurisdiction and how to implement that interpretation as the agencies
consider next steps. The agencies are also accepting written
recommendations from members of the public via a recommendations
docket. These opportunities are intended to provide for broad,
transparent engagement with a full spectrum of stakeholders.
DATES: Written recommendations must be received on or before April 23,
2025. Please refer to the SUPPLEMENTARY INFORMATION section for
additional information on the forthcoming listening sessions.
ADDRESSES: You may send written feedback, identified by Docket ID No.
EPA-HQ-OW-2025-0093, by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov/
(our preferred method). Follow the online instructions for submitting
written feedback.
Email: OW-Docket@epa.gov. Include Docket ID No. EPA-HQ-OW-
2025-0093 in the subject line of the message.
Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Water Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW,
Washington, DC 20460.
Hand Delivery or Courier: EPA Docket Center, WJC West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m.,
Monday-Friday (except Federal Holidays).
Instructions: All submissions received must include Docket ID No.
EPA-HQ-OW-2025-0093. Written feedback received may be posted without
change to https://www.regulations.gov/, including any personal
information provided. For detailed instructions on sending written
recommendations and additional information on the forthcoming listening
sessions, see the SUPPLEMENTARY INFORMATION section of this document.
[[Page 13429]]
FOR FURTHER INFORMATION CONTACT: Stacey Jensen, Oceans, Wetlands and
Communities Division, Office of Water (4504-T), Environmental
Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460;
telephone number: (202) 564-2281; email address: WOTUS-outreach@epa.gov, and Milton Boyd, Office of the Assistant Secretary of
the Army for Civil Works, Department of the Army, 108 Army Pentagon,
Washington, DC 20310-0104; telephone number: (202) 761-8546; email
address: milton.w.boyd.civ@army.mil.
SUPPLEMENTARY INFORMATION:
I. Background
The U.S. Environmental Protection Agency (EPA) and the U.S.
Department of the Army (``Army''; collectively, ``the agencies'')
understand that farmers, landowners, and developers across the country
have concerns and questions about certain key issues related to the
definition of ``waters of the United States'' following the Supreme
Court's decision in Sackett v. Environmental Protection Agency, 598
U.S. 651 (2023) (Sackett). The agencies are committed to providing
additional clarity regarding which waters are ``waters of the United
States'' under the Federal Water Pollution Control Act, also known as
the Clean Water Act. The Trump Administration is going to take a close
look at critical aspects of ``waters of the United States'' and ensure
that the definition follows the Supreme Court's Sackett decision to
provide realistic durability and consistency.
``Waters of the United States'' is a threshold term in the Clean
Water Act that establishes the geographic scope of federal jurisdiction
under the Act.\1\ Many Clean Water Act programs, including sections 303
(water quality standards and total maximum daily loads), 311 (oil spill
programs), 401 (water quality certifications), 402 (pollutant discharge
permits) and 404 (dredged and fill material discharge permits), address
``navigable waters,'' defined in the statute as ``the waters of the
United States, including the territorial seas.'' See 33 U.S.C. 1362(7).
Since the 1970s, the agencies have defined ``waters of the United
States'' by regulation. On May 25, 2023, the Supreme Court decided
Sackett. In light of the decision, on September 8, 2023, the EPA and
the Army published a final rule to amend the January 2023 definition of
``waters of the United States'' without notice and comment to conform
to the Supreme Court's decision.
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\1\ Note that Section 301(a) of the Clean Water Act prohibits
unauthorized discharges ``of any pollutant by any person,'' to
``navigable waters,'' defined as ``the waters of the United States,
including the territorial seas.'' See 33 U.S.C. 1311(a), 1362(7),
(12).
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The ``Amended 2023 Rule'' refers to the final rule ``Revised
Definition of `Waters of the United States,' '' 88 FR 3004 (January 18,
2023) (``2023 Rule'') as amended by the rule ``Revised Definition of
`Waters of the United States'; Conforming,'' 88 FR 61964 (September 8,
2023) (``Conforming Rule'') (codified at 33 CFR 328.3 (U.S. Army Corps
of Engineers) and 40 CFR 120.2 (EPA)) which was issued without notice
and comment under the ``good cause'' exemption to the Administrative
Procedure Act. However, due to ongoing litigation,\2\ the Amended 2023
Rule is not operative in certain States.\3\ In the jurisdictions where
the Amended 2023 Rule is subject to a preliminary injunction, the
agencies are interpreting ``waters of the United States'' consistent
with the pre-2015 regulatory regime \4\ and the Supreme Court's
decision in Sackett, pursuant to the recent 2025 guidance memorandum
released by the agencies.\5\
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\2\ Multiple States and industry associations, as well as one
individual, have filed complaints challenging the Amended 2023 Rule
in four different district courts. Texas v. EPA, Nos. 23-00017 & 23-
00020 (S.D. Tex.); West Virginia v. EPA, No. 23-00032 (D.N.D.);
Kentucky v. EPA, No. 23-00007 (E.D. Ky.); White v. EPA, No. 24-00013
(E.D.N.C.).
\3\ For more information about the operative definition of
``waters of the United States'' for specific geographic areas in
light of litigation, please visit https://www.epa.gov/wotus/definition-waters-united-states-rule-status-and-litigation-update.
\4\ The ``pre-2015 regulatory regime'' refers to the agencies'
pre-2015 definition of ``waters of the United States,'' implemented
consistent with relevant case law and longstanding practice, as
informed by applicable guidance, training, and experience,
consistent with Sackett.
\5\ Memorandum to the Field between the U.S. Department of the
Army, U.S. Army Corps of Engineers and the U.S. Environmental
Protection Agency Concerning the Proper Implementation of
``Continuous Surface Connection'' under the Definition of ``Waters
of the United States'' under the Clean Water Act (Mar. 12, 2025),
https://www.epa.gov/wotus/current-implementation-waters-united-states.
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II. Implementation of the Definition of ``Waters of the United States''
Post-Sackett
On March 12, 2025, the EPA and the Army signed a memorandum
providing guidance for implementing the ``continuous surface
connection'' requirement and related issues under both regulatory
regimes that are currently in effect across the country. In that
memorandum, the agencies stated that they planned to issue a public
notice in the Federal Register and docket on ``WOTUS Notice: The Final
Response to SCOTUS,'' outlining a process to gather recommendations on
the meaning of key terms in light of Sackett to inform any potential
future administrative actions to clarify the definition of ``waters of
the United States'' and to ensure transparent, efficient, and
predictable implementation. This notice fulfills the commitment
provided for in the memorandum.
The agencies have heard numerous concerns raised by stakeholders
about the Amended 2023 Rule, including implementation-related issues
and issues raised in ongoing litigation challenging the amended
regulations. The EPA and the Army have heard concerns that the Amended
2023 Rule does not adequately comply with the Sackett decision,
especially as it relates to implementation of which features are
``connected to'' ``relatively permanent'' waters and to which waters
those phrases apply, implementation of the ``continuous surface
connection'' requirement and to which features that phrase applies, and
which ditches are properly considered to be ``waters of the United
States.'' The agencies intend to use the listening sessions and the
recommendations docket to inform any future administrative actions on
the definition of ``waters of the United States,'' including learning
from States, Tribes, and interested stakeholders about their
experiences under the Amended 2023 Rule, the pre-2015 regulatory regime
as informed by Sackett, and other previous definitions of ``waters of
the United States'' relevant to the Sackett decision. The agencies'
administrative actions will be consistent with the Clean Water Act and
relevant Supreme Court decisions.\6\ Going
[[Page 13430]]
forward, the agencies' will seek to provide clear and transparent
direction regarding the definition and will prioritize practical
implementation approaches, provide for durability and stability, as
well as for more effective and efficient jurisdictional determinations,
permitting actions, and other actions consistent with relevant
decisions of the Supreme Court. Any actions will reflect consideration
of the experiences of, and input received from, landowners, industry
groups, the agricultural community, States, Tribes, local governments,
community organizations, environmental groups, and the general public.
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\6\ In United States v. Riverside Bayview Homes, 474 U.S. 121
(1985), the Supreme Court deferred to the Corps' judgment and upheld
the inclusion of adjacent wetlands in the regulatory definition of
``waters of the United States.'' In Solid Waste Agency of Northern
Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001),
the Court held that the use of ``isolated'' non-navigable intrastate
ponds by migratory birds was not by itself a sufficient basis for
the exercise of Federal regulatory authority under the CWA. In
Rapanos v. United States, 547 U.S. 715 (2006), a four-Justice
plurality interpreted ``waters of the United States'' as covering
``relatively permanent'' waters as well as wetlands with a
``continuous surface connection'' to such water bodies. Justice
Kennedy's concurring opinion concluded that a water or wetland must
possess a ``significant nexus'' to traditional navigable waters to
be a ``water of the United States.'' In Sackett, the Supreme Court
``conclude[d] that the Rapanos plurality was correct'' and rejected
Justice Kennedy's ``significant nexus'' standard, calling it a
``particularly implausible'' ``theory'' and stating that ``the CWA
never mentions the `significant nexus' test, so the EPA has no
statutory basis to impose it.'' Sackett, 598 U.S. at 680.
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III. Stakeholder Feedback Opportunities
To assist the agencies in further clarifying the definition of
``waters of the United States,'' the agencies welcome feedback on
specific key topic areas that can be provided by participating in one
of several listening sessions or by submitting written recommendations
through the open public docket. This feedback will inform any future
administrative actions; however, the agencies will not be providing a
specific written response to individual submissions and
recommendations. When providing feedback, it will be helpful to the
agencies if information is provided to support input on the particular
issues described below, such as statutory citations, case law,
references to longstanding agency practice, etc. The agencies are
seeking input on the following issues:
The scope of ``relatively permanent'' waters and to what
features this phrase applies. The agencies have used a wide variety of
descriptive terminology and criteria for determining which tributaries
are ``waters of the United States'' under multiple regulatory regimes
and rules. However, in light of the Sackett decision, only ``relatively
permanent'' tributaries may be subject to Clean Water Act jurisdiction.
Under the pre-2015 regulatory regime, ``relatively permanent''
tributaries are those that typically flow year-round or that have
continuous flow at least seasonally (e.g., typically three months).
Ephemeral streams were categorically excluded from jurisdiction in the
2020 Navigable Waters Protection Rule (NWPR), and only those perennial
and intermittent tributaries that contributed flow downstream in a
typical year to a traditional navigable water or the territorial seas
were considered jurisdictional. Under the interpretation provided in
the preamble to the 2023 Rule, relatively permanent tributaries are
those tributaries with flowing or standing water year-round or
continuously during certain times of the year and more than just a
short duration in direct response to precipitation.
The agencies seek feedback on whether certain
characteristics, such as flow regime, flow duration, or seasonality
should inform a definition of ``relatively permanent'' as well as to
which features this phrase should apply to in light of Sackett and in
consideration of the agencies' objectives described in this document.
The agencies are particularly interested in feedback
regarding how to identify ``relatively permanent'' tributaries in the
field to assist with transparent, efficient, and predictable
implementation.
The scope of ``continuous surface connection'' and to
which features this phrase applies. Each regulatory definition of and
regulatory regime for ``waters of the United States'' has taken a
different approach to determining adjacency for purposes of assessing
jurisdiction over ``adjacent'' wetlands under the Act and for assessing
the jurisdiction of certain intrastate, non-navigable waters that do
not meet the definition of ``waters of the United States'' under other
jurisdictional categories (e.g., relatively permanent lakes and ponds
assessed under paragraph (a)(5) of the Amended 2023 Rule and waters
assessed under the comparable paragraph (a)(3) of the pre-2015
regulations). In Sackett, the Supreme Court held that ``adjacent''
wetlands are those that have a ``continuous surface connection'' to a
requisite jurisdictional water.\7\ Under the 2020 NWPR, which relied
heavily on the plurality standard in Rapanos v. United States, 547 U.S.
715 (2006), adjacent wetlands and jurisdictional lakes, ponds, and
impoundments included those that abutted traditional navigable waters,
the territorial seas, tributaries, or lakes, ponds, or jurisdictional
impoundments; those with certain surface water connections; and those
physically separated from a jurisdictional water only by a natural
berm, bank, dune, or similar natural feature. Under the pre-2015
regulatory regime as informed by Sackett, the agencies are interpreting
``waters of the United States'' to include ``only those adjacent
wetlands that have a continuous surface connection because they
directly abut the [requisite jurisdictional water] (e.g., they are not
separated by uplands, a berm, dike, or similar feature).'' \8\
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\7\ 598 U.S. at 684.
\8\ See U.S. EPA & U.S. Army Corps of Engineers, Clean Water Act
Jurisdiction Following the U.S. Supreme Court's Decision in Rapanos
v. United States & Carabell v. United States (June 5, 2007),
superseded December 2, 2008 (the ``Rapanos Guidance'') at 7,
footnote 29.
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The preamble to the 2023 Rule states that wetlands and relatively
permanent lakes and ponds meet the continuous surface connection
requirement if they physically abut or touch a requisite jurisdictional
water; if they are connected to a requisite jurisdictional water by a
discrete feature like a non-jurisdictional ditch, swale, pipe, or
culvert; or if they are behind a natural berm or similar natural
landform where that natural landform provides evidence of a continuous
surface connection. However, the agencies recently rescinded any
components of agency interpretation, guidance, or training materials
that assumed a discrete feature established a continuous surface
connection to align the agencies' implementation with the pre-2015
regime and Sackett.\9\ Currently, under both the pre-2015 and Amended
2023 Rule regulatory regimes that are currently operative across the
country, the agencies are implementing ``continuous surface
connection'' to mean abutting (or touching).
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\9\ Memorandum to the Field between the U.S. Department of the
Army, U.S. Army Corps of Engineers and the U.S. Environmental
Protection Agency Concerning the Proper Implementation of
``Continuous Surface Connection'' under the Definition of ``Waters
of the United States'' under the Clean Water Act (Mar. 12, 2025),
https://www.epa.gov/wotus/current-implementation-waters-united-states.
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The agencies seek feedback on defining ``continuous
surface connection,'' including what it means to ``abut'' a
jurisdictional water; if it includes wetlands behind a natural berm or
similar natural landforms to the extent the natural landforms provide
evidence of a continuous surface connection; and whether certain
features, such as flood or tide gates, pumps, or similar artificial
features do or do not remove a wetland from being considered
``adjacent'' to the jurisdictional water on the other side of the
feature.
The agencies specifically seek feedback on the scope of
``connection to'' as well as to which features this phrase applies, to
describe wetlands as adjacent to relatively permanent waters when they
have a continuous surface ``connection to'' those waters.
The agencies also specifically seek feedback on the
interpretation and implementation of the language in
[[Page 13431]]
Sackett providing that ``temporary interruptions in surface connection
may sometimes occur because of phenomena like low tides or dry
spells.'' \10\
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\10\ 598 U.S. at 678.
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Under the Amended 2023 Rule, the agencies have defined
adjacent as ``having a continuous surface connection'' and the
continuous surface connection requirement applies to both adjacent
wetlands and relatively permanent lakes and ponds assessed under
paragraph (a)(5). The agencies seek input on the definition of
``adjacent'' as well as which are the appropriate categories to
properly assess using the continuous surface connection requirement.
The agencies are interested in developing an approach for
continuous surface connection that provides for clarity and
implementability, including whether there are factors to limit
continuous surface connection and whether there are certain
characteristics that could provide clear distinctions to meet the
continuous surface connection requirement. The agencies are also
interested in recommendations for implementation approaches to address
continuous surface connection.
The scope of jurisdictional ditches. In practice,
different types of ditches have generally been considered non-
jurisdictional in different regulatory regimes. The 2015 Clean Water
Rule, the 2020 NWPR, and the Amended 2023 Rule excluded certain types
of ditches explicitly in rule language. Currently, ditches (including
roadside ditches) excavated wholly in and draining only uplands and
that do not carry a relatively permanent flow of water are considered
to be generally non-jurisdictional under the pre-2015 regulatory
regime, while similarly, ditches (including roadside ditches) excavated
wholly in and draining only dry land and that do not carry a relatively
permanent flow of water are excluded by rule in the Amended 2023 Rule.
The agencies solicit feedback on whether flow regime
(e.g., relatively permanent status or perennial or intermittent flow
regimes), physical features, excavation in aquatic resources versus
uplands, type or use of the ditch (e.g., irrigation and drainage),
biological indicators like presence of fish, or other characteristics
could provide clear and implementable distinctions between
jurisdictional and non-jurisdictional ditches.
The agencies also seek input on whether a definition of
ditch, as was provided in the 2020 NWPR, which defined ditch to mean a
constructed or excavated channel used to convey water,\11\ would
provide additional clarity.
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\11\ 85 FR 22250, 22338 (Apr. 21, 2020).
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IV. Public Listening Sessions
The agencies will hold a series of listening sessions intended to
solicit recommendations as the agencies seek to pursue further
administrative action. During these sessions, the agencies intend to
present brief background information and provide an opportunity for
stakeholders to share input, with regard to the topics above. The
agencies will hold at least six listening sessions, with two open to
all stakeholders, one open to States, one open to Tribes, one open to
industry and agricultural stakeholders, and one open to environmental
and conservational stakeholders.
The listening sessions will be held as web and in-person
conferences in April-May 2025. Registration instructions and dates will
be forthcoming at the following website: https://www.epa.gov/wotus/public-outreach-and-stakeholder-engagement-activities. Persons or
organizations wishing to provide verbal recommendations during the
listening sessions will be selected on a first-come, first-serve basis.
Due to the expected number of participants, individuals will be asked
to limit their spoken presentation to three minutes. Once the speaking
slots are filled, participants may be placed on a standby list to speak
or continue to register to listen to the recommendations. The listening
sessions will be recorded and posted on EPA's website. Supporting
materials and written feedback from those who do not have an
opportunity to speak can be submitted to the docket as described above.
Robyn S. Colosimo,
Senior Official Performing the Duties of the Assistant Secretary of the
Army (Civil Works), Department of the Army.
Benita Best-Wong,
Deputy Assistant Administrator for Management, Office of Water,
Environmental Protection Agency.
[FR Doc. 2025-04649 Filed 3-21-25; 8:45 am]
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