On August 29, 2023, the U.S. Environmental Protection Agency (EPA) and Department of the Army (the agencies) issued a final rule to amend the final “Revised Definition of ‘Waters of the United States’” rule, published in the Federal Register on January 18, 2023. This final rule conforms the definition of “waters of the United States” to the U.S. Supreme Court’s May 25, 2023, decision in the case of Sackett v. Environmental Protection Agency. Parts of the January 2023 Rule are invalid under the Supreme Court’s interpretation of the Clean Water Act in the Sackett decision. Therefore, the agencies have amended key aspects of the regulatory text to conform it to the Court’s decision. The conforming rule, "Revised Definition of 'Waters of the United States'; Conforming," published in the Federal Register and became effective on September 8, 2023.
In addition, the January 2023 Rule is not currently operative in certain states and for certain parties due to ongoing litigation. Where the January 2023 Rule is not enjoined, the agencies are implementing the January 2023 Rule, as amended by the conforming rule. In the jurisdictions and for the parties where the January 2023 Rule is enjoined, the agencies are interpreting "waters of the United States" consistent with the pre-2015 regulatory regime and the Supreme Court's decision in Sackett. Please visit the Rule Status page for additional information about the status of the January 2023 Rule, as amended, and litigation.
More information about the final conforming rule is available here.
To ensure consistent and effective implementation of the final rule, EPA and the Department of the Army are developing a series of trainings, implementation memoranda, and other resources. Training materials 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 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 under the 2020 Navigable Waters Protection Rule (NWPR) prior to the U.S. District Court for the District of Arizona’s decision in Pascua Yaqui Tribe v. U.S. Environmental Protection Agency to vacate the 2020 NWPR (D. Ariz. August 30, 2021) 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. AJDs completed under the January 2023 Rule or the pre-2015 regime and not associated with a permit action will also not be reopened until their expiration date, unless one of the criteria for revision is met under RGL 05-02. AJDs issued under the 2020 NWPR as well as those issued under the January 2023 Rule or the pre-2015 regulatory regime prior to the Sackett decision 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 January 2023 Rule, as amended by the conforming rule announced on August 29, 2023, or the pre-2015 regulatory regime implemented consistent with Sackett).
In these cases, the Corps will honor such requests. Note that a recipient of a NWPR AJD who intends to discharge into waters identified as non-jurisdictional under a NWPR AJD, but which may be jurisdictional under the current regulatory regime, may want to discuss their options with the Corps. Corps permit decisions may be modified, suspended, or revoked per 33 C.F.R. § 325.7 where the regulatory criteria are met. Permit decisions made prior to the Arizona court's decision that relied on a NWPR AJD will not be reconsidered in response to the NWPR vacatur. However, due to the vacatur, the Corps will not rely on a NWPR AJD in making a new permit decision. 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.
Permit decisions that relied on an AJD completed under the January 2023 Rule or the pre-2015 regulatory regime will also not be reconsidered. The Corps may rely on an AJD issued under the January 2023 Rule or the pre-2015 regulatory regime and completed prior to the date of the Sackett decision to support pending or new permit decisions where the requestor wishes to do so. However, in these circumstances, 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 the existing AJD, 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.