On December 30, 2022, the Environmental Protection Agency and the U.S. Department of the Army (“the agencies”) announced the final "Revised Definition of 'Waters of the United States'" rule. On January 18, 2023, the rule was published in the Federal Register, and the rule took effect on March 20, 2023. However, in light of preliminary injunctions, the agencies are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime in 26 States until further notice. The agencies developed the 2023 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.
On March 19, 2023, a district court judge for the Southern District of Texas issued an order preliminarily enjoining in Idaho and Texas the 2023 rule issued by EPA and the Department of the Army defining “waters of the United States.” On April 12, 2023, a district court judge in North Dakota issued an order preliminarily enjoining in 24 States the 2023 rule issued by EPA and the Department of the Army defining “waters of the United States.” These States include Alabama, Alaska, Arkansas, Florida, Georgia, Iowa, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia, and Wyoming. The agencies are reviewing these decisions.
The agencies continue to believe the rule, which is informed by the text of the relevant provisions of the Clean Water Act and the statute as a whole, as well as the scientific record, relevant Supreme Court case law, input from public comment, and the agencies’ experience and technical expertise after more than 45 years of implementing the longstanding pre-2015 regulations defining ‘waters of the United States,’ is the best interpretation of the Clean Water Act.
The agencies remain committed to establishing and implementing a durable definition of “waters of the United States” informed by diverse perspectives. Our goal is to protect public health, the environment, and downstream communities while supporting economic opportunity, agriculture, and industries that depend on clean water.
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 halted implementation of the Navigable Waters Protection Rule and interpreted “waters of the United States” consistent with the pre-2015 regulatory regime. On March 20, 2023, the final "Revised Definition of 'Waters of the United States'" rule took effect. The final rule was codified in the Code of Federal Regulations in place of the vacated NWPR. However, considering preliminary injunctions, the agencies are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime in 26 States until further notice. The pre-2015 regulatory regime refers to the Corps’ 1986 definition of “waters of the United States,” implemented consistent with relevant case law and longstanding practice, as informed by applicable guidance, training, and experience. This includes the 2003 SWANCC and 2008 Rapanos guidance documents.
If a Tribe, state, or any other requestor has specific questions about a pending jurisdictional determination or permit, please contact a local U.S. Army Corps of Engineers District office (see https://regulatory.ops.usace.army.mil/offices/) or EPA at cwaWOTUS@epa.gov.
More information about the final rule is available at: https://www.epa.gov/wotus/revising-definition-waters-united-states.