WOTUS Notice: The Final Response to SCOTUS; Establishment of a Public Docket; Request for Recommendations, 13428-13431 [2025-04649]

Download as PDF 13428 Federal Register / Vol. 90, No. 55 / Monday, March 24, 2025 / Proposed Rules 20. On page 5283, in the second column, in paragraph (g)(1)(i), in the seventeenth line from the bottom of the paragraph, the language ‘‘Subsidary’’ is corrected to read ‘‘Subsidiary’’. 21. On page 5285, in the first column, in paragraph (g)(6)(ii), in the eleventh line from the bottom of the paragraph, the language ‘‘creditorexchange’’ is corrected to read ‘‘creditor exchange’’. 22. On page 5285, in the second column, in paragraph (g)(7)(ii), in the eleventh line from the bottom of the paragraph, the language ‘‘creditorexchange’’ is corrected to read ‘‘creditor exchange’’. 23. On page 5285, in the third column, in paragraph (g)(8)(i)(B), in the fourth line from the bottom of the paragraph, the language ‘‘ending on the distribution date’’ is corrected to read ‘‘before its satisfaction with section 361 consideration’’. ■ § 1.368–4 DEPARTMENT OF DEFENSE [Corrected] 24. On page 5289, in the first column, in paragraph (d), in the seventh and eighth lines from the top of the paragraph, the language ‘‘paragraph (d) and paragraph (e) of this’’ is removed. ■ 25. On page 5292, in the second column, in paragraph (g)(7)(ii)(B), in the fifth line from the bottom of the page, the language ‘‘assumptionis’’ is corrected to read ‘‘assumption is’’. ■ 26. On page 5293, in the third column, in paragraph (g)(13)(i), in the seventh line from the bottom of the page, the language ‘‘will transfer’’ is corrected to read ‘‘will commit to attempting to transfer’’. ■ 27. On page 5294, in the first column, in paragraph (g)(13)(i): ■ i. In the fourth line from the top of the page, the language ‘‘Distributing will distribute’’ is corrected to read ‘‘Distributing then will commit to attempting to distribute’’. ■ ii. The twelfth and thirteenth lines from the top of the page are corrected to read ‘‘or follow-on spin-off, Distributing then will commit to selling the retained stock on the open’’. ■ 28. On page 5294, in the third column, in paragraph (g)(14)(i): ■ i. The second and third sentences are corrected to read ‘‘With regard to the retained stock, the separation and distribution agreement and other official records of Distributing provide that Distributing might either transfer the retained stock to a creditor of Distributing in a stock-for-debt exchange that satisfies the requirements set forth in §§ 1.361–5(a) and 1.368–3(a)(5) (stock-for-debt exchange), or distribute that retained stock to Distributing’s shareholders (follow-on spin-off).’’. lotter on DSK11XQN23PROD with PROPOSALS1 ■ VerDate Sep<11>2014 15:50 Mar 21, 2025 Jkt 265001 ii. The fifth and fourth lines from the bottom of the page are corrected to read ‘‘or follow-on spin-off, Distributing then will commit to selling the retained stock on the open’’. ■ iii. In the line at the bottom of the page, the language ‘‘these’’ is corrected to read ‘‘the’’. ■ 29. On page 5295, in the first column, in paragraph (g)(14)(i), the second and third lines from the top of the page are corrected to read ‘‘out the stock-for-debt exchange or follow-on spin-off, without committing to either, as well as its written’’. Aron L. Cosby, Federal Register Liaison, Publications & Regulations Section, Associate Chief Counsel, (Procedure and Administration). [FR Doc. 2025–04757 Filed 3–21–25; 8:45 am] BILLING CODE 4830–01–P 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 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. AGENCY: The U.S. Environmental Protection Agency (EPA) and the Department of the Army intend to engage with State and Tribal coregulators; 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 SUMMARY: PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 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. E:\FR\FM\24MRP1.SGM 24MRP1 Federal Register / Vol. 90, No. 55 / Monday, March 24, 2025 / Proposed Rules 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: lotter on DSK11XQN23PROD with PROPOSALS1 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 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). VerDate Sep<11>2014 15:50 Mar 21, 2025 Jkt 265001 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. 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 II. Implementation of the Definition of ‘‘Waters of the United States’’ PostSackett 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 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/definitionwaters-united-states-rule-status-and-litigationupdate. 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-implementationwaters-united-states. PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 13429 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 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 E:\FR\FM\24MRP1.SGM Continued 24MRP1 13430 Federal Register / Vol. 90, No. 55 / Monday, March 24, 2025 / Proposed Rules lotter on DSK11XQN23PROD with PROPOSALS1 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. 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 nexus’ test, so the EPA has no statutory basis to impose it.’’ Sackett, 598 U.S. at 680. VerDate Sep<11>2014 15:50 Mar 21, 2025 Jkt 265001 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, nonnavigable 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 pre2015 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 7 598 PO 00000 U.S. at 684. Frm 00004 Fmt 4702 Sfmt 4702 jurisdictional water] (e.g., they are not separated by uplands, a berm, dike, or similar feature).’’ 8 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 nonjurisdictional 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). • 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 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. 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-implementationwaters-united-states. E:\FR\FM\24MRP1.SGM 24MRP1 lotter on DSK11XQN23PROD with PROPOSALS1 Federal Register / Vol. 90, No. 55 / Monday, March 24, 2025 / Proposed Rules Sackett providing that ‘‘temporary interruptions in surface connection may sometimes occur because of phenomena like low tides or dry spells.’’ 10 • 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 nonjurisdictional 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 nonjurisdictional 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 10 598 U.S. at 678. VerDate Sep<11>2014 15:50 Mar 21, 2025 excavated channel used to convey water,11 would provide additional clarity. 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 AprilMay 2025. Registration instructions and dates will be forthcoming at the following website: https://www.epa.gov/ wotus/public-outreach-and-stakeholderengagement-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] BILLING CODE 6560–50–P 11 85 Jkt 265001 PO 00000 FR 22250, 22338 (Apr. 21, 2020). Frm 00005 Fmt 4702 Sfmt 4702 13431 ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R10–OAR–2024–0595; FRL–12391– 05–R10] Air Plan Approval; AK, Fairbanks North Star Borough; 2006 24-Hour PM2.5 Serious Area and 189(d) Plan Environmental Protection Agency (EPA). ACTION: Proposed rule; reopening of comment period. AGENCY: The Environmental Protection Agency (EPA) is reopening the public comment period on the proposed rule entitled ‘‘Air Plan Approval; AK, Fairbanks North Star Borough; 2006 24hour PM2.5 Serious Area and 189(d) Plan’’ published on January 8, 2025. Commenters requested more time to review the proposal and prepare comments. In response, the EPA is providing an additional 30 days for the public to provide comment on all aspects of the proposed rule. The January 8, 2025, notice of proposed rulemaking also started the EPA’s adequacy process for the motor vehicle emissions budgets and began the public comment period for that process. The EPA is not reopening the public comment period for the adequacy process, and it intends to proceed with the adequacy process outside of this rulemaking. SUMMARY: The comment period for the proposed rule published on January 8, 2025, at 90 FR 1600, is reopened to allow more time to review the proposal and prepare comments. The EPA is reopening the comment period and the comments must be received on or before April 23, 2025. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–R10– OAR–2024–0595, at https:// www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information the disclosure of which is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment DATES: E:\FR\FM\24MRP1.SGM 24MRP1

Agencies

[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.

-----------------------------------------------------------------------

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: [email protected]. 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: [email protected], 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: [email protected].

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.
---------------------------------------------------------------------------

     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]
BILLING CODE 6560-50-P

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