Definition of "Waters of the United States": Rule Status and Litigation Update
In February 2018, the U.S. Environmental Protection Agency (EPA) and Department of the Army (Army) (“the agencies”) finalized a rule that would establish an applicability date of February 2020 for the 2015 Rule defining “waters of the United States.” Since then, the U.S. District Courts for the District of South Carolina and the Southern District of Washington enjoined and vacated the 2018 Rule. On March 8, 2019, the U.S. Federal Government withdrew its notices of appeal before the U.S. Courts of Appeals for the Fourth and Ninth Circuits regarding lower court decisions enjoining and vacating the agencies’ 2018 Applicability Date Rule.
The agencies are disappointed by the district courts’ rulings, which leave a confusing patchwork of federal regulations in place across the country. Rather than continuing to litigate the Applicability Date Rule, however, the agencies have decided to focus on the rulemaking actions underway.
Pursuant to the South Carolina district court’s order, the 2015 Clean Water Rule is in effect in 22 states, the District of Columbia, and the U.S. territories. The agencies recognize the uncertainty this decision has created and are committed to working closely with states and stakeholders to provide updated information on an ongoing basis regarding which rules are in place in which states. If a state, tribe, or an entity has specific questions about a pending jurisdictional determination or permit, please contact a local U.S. Army Corps of Engineers District office or the EPA.