WOTUS Notice: The Final Response to SCOTUS; Establishment of a Public Docket; Request for Recommendations

DEPARTMENT OF DEFENSE <SUBAGY>Department of the Army, Corps of Engineers</SUBAGY> <CFR>33 CFR Part 328</CFR> ENVIRONMENTAL PROTECTION AGENCY <CFR>40 CFR Part 120</CFR> <DEPDOC>[EPA-HQ-OW-2025-0093; FRL-12683-01-OW]</DEPDOC> <SUBJECT>WOTUS Notice: The Final Response to SCOTUS; Establishment of a Public Docket; Request for Recommendations</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Department of the Army, Corps of Engineers, Department of Defense; and Environmental Protection Agency (EPA). <HD SOURCE="HED">ACTION:</HD> Notice; announcement of listening sessions and solicitation of stakeholder feedback. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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 <E T="03">Sackett</E> v. <E T="03">Environmental Protection Agency.</E> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Written recommendations must be received on or before April 23, 2025. Please refer to the <E T="02">SUPPLEMENTARY INFORMATION</E> section for additional information on the forthcoming listening sessions. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> You may send written feedback, identified by Docket ID No. EPA-HQ-OW-2025-0093, by any of the following methods: • <E T="03">Federal eRulemaking Portal:</E> <E T="03">https://www.regulations.gov/</E> (our preferred method). Follow the online instructions for submitting written feedback. • <E T="03">Email:</E> <E T="03">OW-Docket@epa.gov.</E> Include Docket ID No. EPA-HQ-OW-2025-0093 in the subject line of the message. • <E T="03">Mail:</E> U.S. Environmental Protection Agency, EPA Docket Center, Water Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW, Washington, DC 20460. • <E T="03">Hand Delivery or Courier:</E> 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). <E T="03">Instructions:</E> All submissions received must include Docket ID No. EPA-HQ-OW-2025-0093. Written feedback received may be posted without change to <E T="03">https://www.regulations.gov/,</E> including any personal information provided. For detailed instructions on sending written recommendations and additional information on the forthcoming listening sessions, see the <E T="02">SUPPLEMENTARY INFORMATION</E> section of this document. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> 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: <E T="03">WOTUS-outreach@epa.gov,</E> 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: <E T="03">milton.w.boyd.civ@army.mil.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> 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 <E T="03">Sackett</E> v. <E T="03">Environmental Protection Agency,</E> 598 U.S. 651 (2023) ( <E T="03">Sackett</E> ). 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 <E T="03">Sackett</E> 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. <SU>1</SU> <FTREF/> 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.” <E T="03">See</E> 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 <E T="03">Sackett.</E> 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. <FTNT> <SU>1</SU>  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). </FTNT> 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, <SU>2</SU> <FTREF/> the Amended 2023 Rule is not operative in certain States. <SU>3</SU> <FTREF/> 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  <SU>4</SU> <FTREF/> and the Supreme Court's decision in <E T="03">Sackett,</E> pursuant to the recent 2025 guidance memorandum released by the agencies. <SU>5</SU> <FTREF/> <FTNT> <SU>2</SU>  Multiple States and industry associations, as well as one individual, have filed complaints challenging the Amended 2023 Rule in four different district courts. <E T="03">Texas</E> v. <E T="03">EPA,</E> Nos. 23-00017 & 23-00020 (S.D. Tex.); <E T="03">West Virginia</E> v. <E T="03">EPA,</E> No. 23-00032 (D.N.D.); <E T="03">Kentucky</E> v. <E T="03">EPA,</E> No. 23-00007 (E.D. Ky.); <E T="03">White</E> v. <E T="03">EPA,</E> No. 24-00013 (E.D.N.C.). </FTNT> <FTNT> <SU>3</SU>  For more information about the operative definition of “waters of the United States” for specific geographic areas in light of litigation, please visit <E T="03">https://www.epa.gov/wotus/definition-waters-united-states-rule-status-and-litigation-update.</E> </FTNT> <FTNT> <SU>4</SU>  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 <E T="03">Sackett.</E> </FTNT> <FTNT> <SU>5</SU>  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), <E T="03">https://www.epa.gov/wotus/current-implementation-waters-united-states.</E> </FTNT> <HD SOURCE="HD1">II. Implementation of the Definition of “Waters of the United States” Post-Sackett</HD> 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 <E T="04">Federal Register</E> 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 <E T="03">Sackett</E> to inform any potential future administrative actions to clarify ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 25k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━