Current Implementation of Waters of the United States

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Current Definition of "Waters of the United States"

On August 29, 2023, the U.S. Environmental Protection Agency (EPA) and Department of the Army (the agencies) issued a final rule to amend the final “Revised Definition of ‘Waters of the United States’” rule, published in the Federal Register on January 18, 2023. This final rule conforms the definition of “waters of the United States” to the U.S. Supreme Court’s May 25, 2023, decision in the case of Sackett v. Environmental Protection Agency. Parts of the January 2023 Rule are invalid under the Supreme Court’s interpretation of the Clean Water Act in the Sackett decision. Therefore, the agencies have amended key aspects of the regulatory text to conform it to the Court’s decision. The conforming rule, "Revised Definition of 'Waters of the United States'; Conforming," published in the Federal Register and became effective on September 8, 2023. 

In addition, the January 2023 Rule is not currently operative in certain states and for certain parties due to ongoing litigation. Where the January 2023 Rule is not enjoined, the agencies are implementing the January 2023 Rule, as amended by the conforming rule. In the jurisdictions and for the parties where the January 2023 Rule is enjoined, the agencies are interpreting "waters of the United States" consistent with the pre-2015 regulatory regime and the Supreme Court's decision in Sackett. Please visit the Rule Status page for additional information about the status of the January 2023 Rule, as amended, and litigation.

More information about the final conforming rule is available here. 

Training

To ensure consistent and effective implementation of the final rule, EPA and the Department of the Army are developing a series of trainings, implementation memoranda, and other resources. Training materials can be found here.

Jurisdictional Determinations

An approved jurisdictional determination ("AJD") is a document provided by the Corps stating the presence or absence of “waters of the United States” on a parcel or a written statement and map identifying the limits of “waters of the United States” on a parcel. See 33 C.F.R. § 331.2. Under existing Corps’ policy, AJDs are generally valid for five years unless new information warrants revision prior to the expiration date. See U.S. Army Corps of Engineers, Regulatory Guidance Letter No. 05–02, § 1(a), p. 1 (June 2005) (Regulatory Guidance Letter (RGL) 05–02).

As a general matter, the agencies’ actions are governed by the definition of "waters of the United States" that is in effect at the time the Corps completes an AJD, not by the date of the request for an AJD. AJDs completed under the 2020 Navigable Waters Protection Rule (NWPR) prior to the U.S. District Court for the District of Arizona’s decision in Pascua Yaqui Tribe v. U.S. Environmental Protection Agency to vacate the 2020 NWPR (D. Ariz. August 30, 2021) and not associated with a permit action (also known as "stand-alone" AJDs under RGL 16-01) will not be reopened until their expiration date, unless one of the criteria for revision is met under RGL 05-02. AJDs completed under the January 2023 Rule or the pre-2015 regime and not associated with a permit action will also not be reopened until their expiration date, unless one of the criteria for revision is met under RGL 05-02. AJDs issued under the 2020 NWPR as well as those issued under the January 2023 Rule or the pre-2015 regulatory regime prior to the Sackett decision could also be reopened if the recipient of such an AJD requests that a new AJD be provided pursuant to the current regulatory regime (i.e., the January 2023 Rule, as amended by the conforming rule announced on August 29, 2023, or the pre-2015 regulatory regime implemented consistent with Sackett). 

In these cases, the Corps will honor such requests. Note that a recipient of a NWPR AJD who intends to discharge into waters identified as non-jurisdictional under a NWPR AJD, but which may be jurisdictional under the current regulatory regime, may want to discuss their options with the Corps. Corps permit decisions may be modified, suspended, or revoked per 33 C.F.R. § 325.7 where the regulatory criteria are met. Permit decisions made prior to the Arizona court's decision that relied on a NWPR AJD will not be reconsidered in response to the NWPR vacatur. However, due to the vacatur, the Corps will not rely on a NWPR AJD in making a new permit decision. Therefore, for any currently pending permit action that relies on a NWPR AJD, or for any future permit application received that intends to rely on a NWPR AJD for purposes of permit processing, the Corps will discuss with the applicant, as detailed in RGL 16-01, whether the applicant would like to receive a new AJD completed under the current regulatory regime to continue their permit processing or whether the applicant would like to proceed in reliance on a preliminary JD or no JD whatsoever.

Permit decisions that relied on an AJD completed under the January 2023 Rule or the pre-2015 regulatory regime will also not be reconsidered. The Corps may rely on an AJD issued under the January 2023 Rule or the pre-2015 regulatory regime and completed prior to the date of the Sackett decision to support pending or new permit decisions where the requestor wishes to do so. However, in these circumstances, the Corps will discuss with the applicant, as detailed in RGL 16-01, whether the applicant would like to receive a new AJD completed under the current regulatory regime to continue their permit processing or whether the applicant would like to proceed in reliance on the existing AJD, a preliminary JD, or no JD whatsoever.

Information about Clean Water Act Approved Jurisdictional Determinations that have been finalized can be found here on EPA's website or on the Corps' JD public interface.

Current Regulatory Definition

Related Material

Clean Water Act Approved Jurisdictional Determinations

Army Corps of Engineers Website

Clean Water Act Summary

Other CWA Policies and Guidance

On August 29, 2023, the U.S. Environmental Protection Agency (EPA) and Department of the Army (the agencies) issued a final rule to amend the final “Revised Definition of ‘Waters of the United States’” rule, published in the Federal Register on January 18, 2023. This final rule conforms the definition of “waters of the United States” to the U.S. Supreme Court’s May 25, 2023, decision in the case of Sackett v. Environmental Protection Agency. Parts of the January 2023 Rule are invalid under the Supreme Court’s interpretation of the Clean Water Act in the Sackett decision. Therefore, the agencies have amended key aspects of the regulatory text to conform it to the Court’s decision. The conforming rule, "Revised Definition of 'Waters of the United States,' Conforming," became effective on September 8, 2023 upon publication in the Federal Register. In addition, the January 2023 Rule, as amended by the conforming rule, is not currently operative in certain states and for certain parties due to litigation on the January 2023 Rule. Please visit the Rule Status page for additional information about the status of the January 2023 Rule, as amended, and litigation. EPA’s regulatory definition of the term "waters of the United States" under the 2023 Rule at 40 CFR 120 is listed below. The Corps’ identical definition is at 33 CFR 328.3. 

40 CFR 120.2(a)

Waters of the United States means:

(1) Waters which are:

(i) Currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;

(ii) The territorial seas; or

(iii) Interstate waters;

(2) Impoundments of waters otherwise defined as waters of the United States under this definition, other than impoundments of waters identified under paragraph (a)(5) of this section;

(3) Tributaries of waters identified in paragraph (a)(1) or (2) of this section that are relatively permanent, standing or continuously flowing bodies of water;

(4) Wetlands adjacent to the following waters:

(i) Waters identified in paragraph (a)(1) of this section; or

(ii) Relatively permanent, standing or continuously flowing bodies of water identified in paragraph (a)(2) or (a)(3) of this section and with a continuous surface connection to those waters; 

(5) Intrastate lakes and ponds not identified in paragraphs (a)(1) through (4) of this section that are relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to the waters identified in paragraph (a)(1) or (a)(3) of this section.

Eight exclusions from the definition of "waters of the United States" are codified at paragraph (b), and key terms are defined at paragraph (c). "Adjacent" is defined at (c)(2) as "having a continuous surface connection."

Guidance Documents and Memoranda Used to Implement the Definition of "Waters of the United States"

The guidance documents and memoranda listed below are being used to implement the final "Revised Definition of 'Waters of the United States'" rule, which was published in the Federal Register on January 18, 2023, and took effect on March 20, 2023, as amended by the conforming rule which took effect of September 8, 2023, consistent with the Supreme Court's decision in Sackett v. EPA. However, this rule is not currently operative in certain states and for certain parties due to litigation. Where the rule is not operative, "waters of the United States" is interpreted consistent with the regulatory regime in place prior to 2015, consistent with the Sackett decision. Select documents used to implement the pre-2015 regulatory regime are available here. Please visit the Rule Status page for additional information about the status of the January 2023 Rule, as amended, and litigation. 

Approved jurisdictional determinations (JDs) are case-specific determinations based on the record, and factual questions or Sackett concerns may be raised in the context of a particular approved JD. For each of the regulatory regimes (the January 2023 Rule, as amended, and the pre-2015 regime) under which the Corps is issuing approved JDs, EPA and the Corps (“the agencies”) signed and posted a joint coordination memorandum that established a process by which the agencies will coordinate on Clean Water Act geographic jurisdictional matters to ensure accurate and consistent implementation of the operative regime (see web links below). For draft approved JDs that are elevated to the Headquarters level for review, a memorandum may be issued that provides policy guidance to the respective EPA regional and Corps district offices. The agencies are posting those memoranda on the web to ensure transparency and accessibility to the public. Memoranda providing policy guidance for draft approved JDs completed under the January 2023 Rule, as amended, will be posted on this web page below. Memoranda for draft approved JDs completed under the pre-2015 regime are available here.

The Clean Water Act and EPA and Corps regulations, interpreted consistent with the Sackett decision, contain legally binding requirements. The guidance documents and memoranda listed below do not substitute for those provisions or regulations, nor are they regulations themselves. Thus, the guidance documents and memoranda do not impose legally binding requirements on EPA, the Corps, Tribes, States, or the regulated community, and may not apply to a particular situation based upon the circumstances.

  • Joint Coordination Memorandum to the Field Between the U.S. Department of the Army, U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) on the January 2023 Rule, As Amended: The purpose of this memo is to establish a process by which the Corps and EPA will coordinate on Clean Water Act geographic jurisdictional matters to ensure accurate and consistent implementation of the January 2023 rule, as amended, where that regulatory regime is operative. 
  • Joint Coordination Memorandum to the Field Between the U.S. Department of the Army, U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) on the Pre-2015 Regulatory Regime: The purpose of this memo is to establish a process by which the Corps and EPA will coordinate on Clean Water Act geographic jurisdictional matters to ensure accurate and consistent implementation of the pre-2015 regulatory regime, where that regulatory regime is operative.
  • Memorandum to the Field Concerning Issues Related to Implementation of Section 404 of the Clean Water Act (CWA) and the Food Security Act of 1985, as Amended (FSA) (“2022 Ag Memo”): The purpose of this memo is to minimize duplication of efforts pursuant to the CWA section 404 program and the FSA Wetland Conservation Provisions and to facilitate the agencies’ efforts to ensure that federal wetland programs, including those that identify prior converted cropland, are administered in an efficient and effective manner. The 2022 Ag Memo reflects updated policies from the “Revised Definition of ‘Waters of the United States’” rule. The 2022 Ag Memo rescinds the 2020 Ag Memo.
  • Memorandum to the Field on Exemptions from Regulation under Section 404(f)(1)(C) of the CWA for the Construction or Maintenance of Irrigation Ditches and for the Maintenance of Drainage Ditches (“2020 Ditch Exemptions Memo”): The purpose of the 2020 Ditch Exemptions Memo is to provide a clear, consistent approach regarding the application of the exemptions from regulation under section 404(f)(1)(C) of the CWA for the construction or maintenance of irrigation ditches and for the maintenance of drainage ditches (“ditch exemptions”).

  • Waters That Qualify as “Traditional Navigable Waters” Under Section (a)(1) of the Agencies’ Regulations (“TNW Guidance”): This document (formerly known as Appendix D: Legal Definition of Traditional Navigable Waters) continues to provide guidance for determining whether a water is jurisdictional under paragraph (a)(1) of the agencies’ regulations defining “waters of the United States” as a “traditional navigable water” for purposes of the CWA and the agencies’ implementing regulations. (Posted December 30, 2022.)

  • Headquarters Field Memos Implementing the 2023 Rule, as Amended 
  • 2016 Post-Hawkes Memorandum - Interim guidance to field staff in light of U.S. Army Corps of Engineers v. Hawkes Co.
  • 1989 Memorandum of Agreement - Allocates responsibilities between EPA and the Corps for determining the geographic scope of the CWA Section 404 program and the applicability of exemptions from regulation under Section 404(f).
  • 1979 “Civiletti” Memorandum - U.S. Attorney General opinion on ultimate administrative authority under CWA Section 404 to determine the reach of navigable waters and the meaning of Section 404(f).
  • Clean Water Act Section 404 and Agriculture - Includes the 1990 Memorandum to the Field and the Memorandum withdrawing the March 2014 "U.S. Environmental Protection Agency and U.S. Department of the Army Interpretive Rule Regarding the Applicability of Clean Water Act Section 404(f)(l)(A)."

Waters of the United States

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Last updated on August 30, 2024