Legal Memoranda Regarding Solid Waste Agency of Northern Cook County (SWANCC) v. 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 and are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime until further notice. The agencies continue to review the order and consider next steps. This includes 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.
The agencies are currently utilizing the 2003 guidance listed below.
The 2003 joint legal memorandum (68 FR 1991, 1995 (Jan . 15, 2003)) provides clarifying guidance regarding the Supreme Court’s decision in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001) (‘‘SWANCC’’). It was jointly signed in January 2003 by the General Counsels of EPA and the Department of Army.
The 2001 joint legal memorandum describes which aspects of the regulatory definition of "waters of the United States" are and are not affected by SWANCC. It was jointly signed in January 2001 by the General Counsel of EPA and the Chief Counsel of the Army Corps of Engineers. This guidance is superseded by the 2003 guidance.