Current Implementation of Waters of the United States

• Current Definition of "Waters of the United States"
• Jurisdictional Determinations
• Current Regulatory Definition
• Guidance Documents and Memoranda Used to Implement the Current Definition of "Waters of the United States"

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Current Definition of "Waters of the United States"

The final "Revised Definition of 'Waters of the United States'" rule was published in the Federal Register on January 18, 2023, and took effect on March 20, 2023. The Rule is operative in all jurisdictions of the United States except Idaho and Texas. In light of the preliminary injunction, the agencies are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime in Idaho and Texas until further notice. The agencies developed this rule with consideration of the relevant provisions of the Clean Water Act and the statute as a whole, relevant Supreme Court case law, and the agencies’ technical expertise after more than 45 years of implementing the longstanding pre-2015 “waters of the United States” framework. This rule also considers the best available science and extensive public comment to establish a definition of “waters of the United States” that supports public health, environmental protection, agricultural activity, and economic growth. More information about the final rule is available here. Please visit the Rule Status page for additional information about the status of the rule and litigation.

Jurisdictional Determinations

The Environmental Protection Agency and U.S. Army Corps of Engineers ("the agencies") are in receipt of the U.S. District Court for the District of Arizona’s August 30, 2021, order vacating and remanding the Navigable Waters Protection Rule (NWPR) in the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency. In light of this order, the agencies halted implementation of the NWPR nationwide and interpreted “waters of the United States” consistent with the pre-2015 regulatory regime until the "Revised Definition of 'Waters of the United States'" took effect on March 20, 2023. For more information on litigation history, please see the  History of the Effects of Litigation Over Recent Definitions of "Waters of the United States" (pdf) (66.74 KB)

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 prior to the court’s decision 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. An AJD issued under the NWPR (a NWPR AJD) 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 2023 final rule "Revised Definition of 'Waters of the United States'"). In that case, the Corps will honor such request recognizing that if the recipient of a NWPR AJD intends to discharge into waters identified as non-jurisdictional under the NWPR but which may be jurisdictional under the current regulatory regime, such recipient may want to discuss their options with the Corps. AJD requests pending on, or received after, the Arizona court’s vacatur decision will be completed consistent with the applicable regulatory regime.

As the agencies’ actions are governed by the regulatory definition at the time of the action, permit decisions made prior to the court’s decision that relied on a NWPR AJD will not be reconsidered in response to the NWPR vacatur. Corps permit decisions may be modified, suspended, or revoked per 33 C.F.R. § 325.7 where the regulatory criteria are met. The Corps will not rely on a NWPR AJD in making a new permit decision. The Corps will make new permit decisions pursuant to the currently applicable regulatory regime . 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.

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.

The agencies are currently implementing “waters of the United States” under the 2023 rule “Revised Definition of ‘Waters of the United States’” in all jurisdictions except Idaho and Texas. EPA’s regulatory definition of term at 40 CFR 120 is listed below. The Corps’ identical definition is at 33 CFR 323.3.

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, including interstate wetlands;

(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:

(i) That are relatively permanent, standing or continuously flowing bodies of water; or

(ii) That either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section;

(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)(i) of this section and with a continuous surface connection to those waters; or

(iii) Waters identified in paragraph (a)(2) or (3) of this section when the wetlands either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) of this section;

(5) Intrastate lakes and ponds, streams, or wetlands not identified in paragraphs (a)(1) through (4) of this section:

(i) 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)(i) of this section; or

(ii) That either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of waters identified in paragraph (a)(1) 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).

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. The Rule is operative in all jurisdictions of the United States except Idaho and Texas.

• 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.
  • 2022 Ag Memo (pdf) (2.1 MB)
• Joint Coordination 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 (“2022 Coordination Memo”): The purpose of this memo is to establish a process by which the Corps and EPA will coordinate on CWA geographic jurisdiction matters to ensure accurate and consistent implementation of the “Revised Definition of ‘Waters of the United States’” rule.

  • 2022 Coordination Memo (pdf) (1.13 MB)

  • Flowchart to Accompany 2022 Coordination Memorandum (pdf) (142.14 KB)

• 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”).

  • 2020 Ditch Exemption Memo (pdf) (141.25 KB)

• 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.)

  • Waters That Qualify as “Traditional Navigable Waters” Under Section (a)(1) of the Agencies’ Regulations (pdf)

• 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)."