Definition of "Waters of the United States": Rule Status and Litigation Update

By U.S. ArmySeptember 19, 2018

Map of Applicable Definition of Waters of the United States by State
The EPA is providing this map for informational purposes only, and it cannot be
relied on for specific determinations or other legal purposes. As the litigation
continues, the EPA will update the map, when possible, to reflect the most
current inform... (Photo Credit: U.S. Army)

The U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army) are implementing Executive Order 13778, Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the "Waters of the United States" Rule, in two steps to provide certainty to the regulated community and the public while the agencies develop a revised definition of "waters of the United States."

1. Step One - Repeal - The agencies are proposing to establish the legal status quo in the Code of Federal Regulations, by repealing the 2015 Rule and recodifying the regulation that was in place prior to issuance of the 2015 Rule and that is being implemented now.

2. Step Two - Revise - The agencies plan to propose a new definition that would replace the approach in the 2015 Rule and the pre-2015 regulations, taking into consideration the principles that Justice Scalia outlined in the Rapanos plurality opinion.

Both proposed steps of this rulemaking process will follow the Administrative Procedure Act.

The EPA and the Army continue to review the U.S. District Court for the District of South Carolina's decision to vacate and nationally enjoin the agencies' final rule that added an applicability date to the 2015 Clean Water Rule. Pursuant to the court's order, the 2015 Clean Water Rule is now in effect in 22 states, the District of Columbia, and the U.S. territories. Parties to the case, including the EPA and the Army, have filed motions appealing the order and seeking a stay of the district court's decision. While the litigation continues, the agencies are complying with the district court's order and implementation issues that arise are being handled on a case-by-case basis. The agencies recognize the uncertainty this decision has created and are committed to working closely with states and stakeholders to provide updated information on an ongoing basis regarding which rules are in place in which states. 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.

Related Links:

Return to ASA(CW) Home Page

Please visit EPA's website for the most current information on the rule-making process.

Please visit the Corps Regulatory Program's website for current information on jurisdictional determinations and permitting procedures.