Current Implementation of Waters of the United States
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 in the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency. In light of this order, the agencies have halted implementation of the Navigable Waters Protection Rule nationwide and are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime until further notice. The agencies are working expeditiously to move forward with the rulemakings announced on June 9, 2021, in order to better protect our nation’s vital water resources that support public health, environmental protection, agricultural activity, and economic growth. The agencies remain committed to crafting a durable definition of “waters of the United States” that is informed by diverse perspectives and based on an inclusive foundation.
On November 18, 2021, the U.S. Environmental Protection Agency and the Department of the Army (“the agencies”) announced the signing of a proposed rule to revise the definition of “waters of the United States.” This proposal marks a key milestone in the regulatory process announced in June, 2021. The agencies propose to put back into place the pre-2015 definition of “waters of the United States,” updated to reflect consideration of Supreme Court decisions. This familiar approach to “waters of the United States” would support a stable implementation of “waters of the United States” while the agencies continue to consult with states, Tribes, local governments, and a broad array of stakeholders in both the implementation of WOTUS and future regulatory actions.
The agencies remain committed to crafting a durable definition of “waters of the United States” that is informed by diverse perspectives and based on an inclusive foundation. A durable definition of WOTUS is essential to ensuring clean and safe water in all communities—supporting human health, animal habitat, agriculture, watersheds, flood management, local economies, and industry. This rulemaking process follows a review conducted by the agencies as directed by January 20, 2021 Executive Order 13990 on “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.”
Further details about the Agencies’ plans, including information regarding the upcoming public meetings and docket, can be found here.
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 CFR 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 rule in effect at the time the Corps completes an AJD, not by the date of the request for an AJD. Therefore, AJDs that were pending on, or received after the court’s decision will be completed consistent with the pre-2015 regulatory regime. AJDs completed prior to the court’s decision remain valid until the expiration date unless one of the criteria for revision is met under RGL 05-02, or the recipient of such an AJD requests that a new AJD be provided pursuant to the pre-2015 regulatory regime.
The agencies are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime until further notice.
40 CFR 230.3(s)
The term waters of the United States means:
- All waters which are 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;
- All interstate waters including interstate wetlands;
- All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:
- Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
- From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
- Which are used or could be used for industrial purposes by industries in interstate commerce;
- All impoundments of waters otherwise defined as waters of the United States under this definition;
- Tributaries of waters identified in paragraphs (s)(1) through (4) of this section;
- The territorial sea;
- Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (s)(1) through (6) of this section; waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States.
Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA.
Guidance Documents on the Definition of "Waters of the United States"
In 2007 and again in 2008, the agencies developed guidance for implementing the above definition of "waters of the United States" under the Clean Water Act following the Rapanos v. United States, and Carabell v. United States Supreme Court decision.
- Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision in Rapanos v. United States & Carabell v. United States - December 2, 2008
- Questions and Answers Regarding the Revised Rapanos & Carabell Guidance
- June 2007 Legal Memorandum discussing Clean Water Act Jurisdiction Following the U.S. Supreme Court Decision in Rapanos v. United States & Carabell v. United States. This guidance is superseded by the 2008 guidance.
- 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
- Appendix D: Legal Definition of Traditional Navigable Waters
- For additional information, consult the Army Corps of Engineers Regulatory Program
In 2001 and again in 2003, the agencies developed guidance to address the above definition of "waters of the United States" under the Clean Water Act following the SWANCC Supreme Court decision.
- January 2003 Legal Memorandum discussing the scope of Clean Water Act jurisdiction in light of the SWANCC ruling and related court decisions.
- January 2001 Legal Memorandum describing which aspects of the regulatory definition of "waters of the United States" are and are not affected by SWANCC. This guidance is superseded by the 2003 guidance.