Publication
Listening Sessions Scheduled to Discuss Waters of the United States (WOTUS)
As referenced in last month’s publication, the U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army (Army) will be hosting numerous separate listening sessions with key stakeholders starting next week to gain insight on the definition of Waters of the United States (WOTUS). These listening sessions come on the heels of last month’s announcement from EPA Administrator Lee Zeldin that the agency will be revising the WOTUS rule in accordance with the U.S. Supreme Court rulings.
Currently, the EPA and Army have four listening sessions scheduled, with indications of at least one more to follow at some point. These listening sessions are categorized by stakeholder group, as follows:
- Virtual and at EPA Headquarters in Washington, D.C. (HQ)
- April 29, 2025 (9:30 a.m. – 12:00 p.m. ET)
- Virtual
- April 30, 2025 (1:00 – 3:30 p.m. ET)
- Virtual & EPA HQ
- May 1, 2025 (9:30 a.m. – 12:00 p.m. ET)
- Virtual & EPA HQ
- May 1, 2025 (1:00 – 3:30 p.m. ET)
Listening Sessions for the Public
- To be Announced
The EPA and Army stated in their Notice1 that the agencies will be holding “at least six listening sessions, with two open to all stakeholders,”2 so everyone will have an opportunity to hear from fellow entities individually and later from all entities collectively. While the agencies “intend to present brief background information,” these listening sessions will largely be spent hearing from stakeholders.3 There is also an option to provide written comments prior to Wednesday, April 23, 2025, at Docket ID No. EPAHQ-OW-2025-0093.
The most useful input to the agencies in “further clarifying the definition of [WOTUS]” is information providing “statutory citations, case law, references to longstanding agency practice, etc.” specifically on the following issues:4
- The scope of ‘relatively permanent’ waters and to what features this phrase applies.
- 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 …
- 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.
- Defining ‘‘continuous surface connection,’’ including what it means to ‘‘abut’’ a jurisdictional water …
- Scope of ‘‘connection to’’ as well as to which features this phrase applies …
- Interpretation and implementation of the language in Sackett providing that ‘‘temporary interruptions in surface connection may sometimes occur because of phenomena like low tides or dry spells.’
- Under the Amended 2023 Rule … Definition of ‘‘adjacent’’ as well as which are the appropriate categories to properly assess using the continuous surface connection requirement.
- Developing an approach for continuous surface connection that provides for clarity and implementability …
- The scope of jurisdictional ditches
- 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.
- 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.
Participation in the public comment process can be essential for the impacted parties to preserve their rights in pursuing all necessary actions to ensure proper consideration of the regulations.
**Any opinions expressed are the authors’, and not necessarily those of the firm or their colleagues.
Footnotes
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Army and EPA. WOTUS Notice: The Final Response to SCOTUS; Establishment of a Public Docket; Request for Recommendations, 90 Fed. Reg. 13428, Monday, March 24, 2025.
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Id., p.13431.
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Ibid.
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Id., pp. 13430-13431
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