Definition of "Waters of the United States": Rule Status and Litigation Update
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.
As a result of ongoing litigation on the January 2023 Rule, the agencies are implementing the January 2023 Rule, as amended by the conforming rule, in 24 states, the District of Columbia, and the U.S. Territories. In the other 26 states, the agencies are interpreting "waters of the United States" consistent with the pre-2015 regulatory regime and the Supreme Court's decision in Sackett until further notice.
Background
On December 30, 2022, the Environmental Protection Agency and the U.S. Department of the Army 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. Find out more about the final January 2023 Rule.
On March 19, 2023, a district court judge for the Southern District of Texas issued an order preliminarily enjoining in Idaho and Texas the January 2023 Rule. Subsequently, on April 12, 2023, a district court judge in North Dakota issued an order preliminarily enjoining in 24 states the January 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.
On May 10, 2023, the U.S. Court of Appeals for the Sixth Circuit issued an order granting the motions of Kentucky and plaintiffs-appellants for a stay pending appeal of a district court's decision in additional litigation challenging the January 2023 Rule. Commonwealth of Kentucky v. EPA (No. 23-5343) and Kentucky Chamber of Commerce, et al. v. EPA (No. 23-5345). While the stay was in effect, the agencies interpreted “waters of the United States” consistent with the pre-2015 regulatory regime in Kentucky and for the plaintiffs-appellants and their members in this litigation (including Kentucky Chamber of Commerce, U.S. Chamber of Commerce, Associated General Contractors of Kentucky, Home Builders Association of Kentucky, Portland Cement Association, and Georgia Chamber of Commerce). On September 23, 2024, the Sixth Circuit issued a mandate lifting its stay order, and as of that date, the amended 2023 rule is operative in Kentucky and for the plaintiffs-appellants and their members (except in jurisdictions where the rule is preliminary enjoined pursuant to court orders issued in other litigation).
On May 25, 2023, the Supreme Court decided Sackett v. Environmental Protection Agency. While the January 2023 Rule was not directly before the Court, the Court considered the jurisdictional standards set forth in that rule: the plurality standard and the significant nexus standard from the Court’s decision in Rapanos v. United States. In Sackett, the Court “conclude[d] that the Rapanos plurality was correct: the [Clean Water Act]’s use of ‘waters’ encompasses ‘only those relatively permanent, standing or continuously flowing bodies of water “forming geographic[al] features” that are described in ordinary parlance as “streams, oceans, rivers, and lakes.”’” 598 U.S. 651, 671 (2023) (quoting Rapanos, 547 U.S. at 739). The Court also “agree[d] with [the plurality’s] formulation of when wetlands are part of ‘the waters of the United States,’” id. at 678: “when wetlands have ‘a continuous surface connection to bodies that are “waters of the United States” in their own right, so that there is no clear demarcation between “waters” and wetlands.’” Id. at 678 (citing Rapanos, 547 U.S. at 742, 755). The Court concluded that the significant nexus standard is inconsistent with the Clean Water Act.
As a result of ongoing litigation on the January 2023 Rule, the agencies are implementing the definition of “waters of the United States” under the January 2023 Rule, as amended by the conforming rule, in 24 states, the District of Columbia, and the U.S. Territories. In the other 26 states, the agencies are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime and the Sackett decision until further notice.
If a state, Tribe, or an entity has specific questions about a pending jurisdictional determination or permit, please contact a local U.S. Army Corps of Engineers District office or the EPA.
EPA is providing the below map for informational purposes only to illustrate which definition of “waters of the United States” is generally operative in each state across the country as a result of litigation challenging the 2023 Rule, and it cannot be relied on for specific determinations or other legal purposes. As the litigation continues, EPA will update the map, when possible, to reflect the most current information that is made available to the EPA and the Army.
