2008 Rapanos Guidance and Related Documents under CWA Section 404
The final "Revised Definition of 'Waters of the United States'" rule was published in the Federal Register on January 18, 2023, and the rule took effect on March 20, 2023. However, the final rule is not currently operative in certain states and for certain parties due to litigation. Additionally, the agencies are in receipt of the U.S. Supreme Court’s May 25, 2023 decision in the case of Sackett v. Environmental Protection Agency. In light of this decision, the agencies will interpret the phrase “waters of the United States” consistent with the Supreme Court’s decision in Sackett. The agencies continue to review the decision to determine next steps. Please visit the Rule Status page for additional information about the status of the 2023 Rule and litigation. More information about the final rule is available here.
The agencies utilize the guidance listed below to implement the pre-2015 regulatory regime. Additionally, and as explained above, the agencies will interpret the phrase “waters of the United States” consistent with the Supreme Court’s decision in Sackett.
This joint memorandum, "Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision in Rapanos v. United States & Carabell v. United States," (signed December 2, 2008), provides guidance to Environmental Protection Agency (EPA) regions and U.S. Army Corps of Engineers (Corps) districts implementing the Supreme Court's decision in the consolidated cases Rapanos v. United States and Carabell v. United States which address the jurisdiction over waters of the United States under the Clean Water Act. This guidance incorporates revisions to the EPA/Army Memorandum originally issued on June 6, 2007, after careful consideration of public comments received and based on the agencies' experience in implementing the Rapanos decision.
In addition, related documents include Questions and Answers Regarding the Revised Rapanos & Carabell Guidance and the June 2007 Memorandum of Agreement regarding Coordination on Jurisdictional Determinations under Clean Water Act Section 404 in Light of the SWANCC and Rapanos Supreme Court Decisions.
- Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision in Rapanos v. United States & Carabell v. United States (pdf)
- Questions and Answers Regarding the Revised Rapanos & Carabell Guidance (pdf)
- June 2007 Legal Memorandum (pdf)
- June 2007 Memorandum of Agreement regarding Coordination on Jurisdictional Determinations under Clean Water Act Section 404 in Light of the SWANCC and Rapanos Supreme Court Decisions (pdf)
- Appendix D: Legal Definition of Traditional Navigable Waters (note: this document is now entitled "Waters That Qualify as ‘Traditional Navigable Waters’ Under Section (a)(1) of the Agencies’ Regulations" ("TNW Guidance") and the TNW Guidance continues to be utilized by the agencies under current implementation).