2008 Rapanos Guidance and Related Documents under CWA Section 404
The final "Revised Definition of 'Waters of the United States'" rule was published in the Federal Register on January 18, 2023, and took effect on March 20, 2023. On August 29, 2023, the agencies issued a final rule amending the Code of Federal Regulations to conform the January 2023 Rule’s definition of “waters of the United States” to the Supreme Court decision in Sackett v. Environmental Protection Agency. The conforming rule amends the provisions of the agencies’ definition of “waters of the United States” in the January 2023 Rule that are invalid under the Supreme Court’s interpretation of the Clean Water Act in the Sackett decision. The conforming rule, “Revised Definition of ‘Waters of the United States’; Conforming,” became effective on September 8, 2023 upon publication in the Federal Register. In addition, the final rule, as amended by the conforming rule, is not currently operative in certain states and for certain parties due to litigation, and the pre-2015 regulatory regime is being implemented instead consistent with 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 current implementation of the definition of "waters of the United States" is available here.
The agencies utilize the guidance listed below to implement the pre-2015 regulatory regime. Additionally, the agencies are interpreting the phrase “waters of the United States” consistent with the Supreme Court’s decision in Sackett. Thus, certain aspects of the guidance documents listed below may no longer be in effect.
This joint memorandum, "Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision in Rapanos v. United States & Carabell v. United States," (signed December 2, 2008), provides guidance to Environmental Protection Agency (EPA) regions and U.S. Army Corps of Engineers (Corps) districts implementing the Supreme Court's decision in the consolidated cases Rapanos v. United States and Carabell v. United States which address the jurisdiction over waters of the United States under the Clean Water Act. This guidance incorporates revisions to the EPA/Army Memorandum originally issued on June 6, 2007, after careful consideration of public comments received and based on the agencies' experience in implementing the Rapanos decision.
In addition, related documents include Questions and Answers Regarding the Revised Rapanos & Carabell Guidance and the June 2007 Memorandum of Agreement regarding Coordination on Jurisdictional Determinations under Clean Water Act Section 404 in Light of the SWANCC and Rapanos Supreme Court Decisions.
- Clean Water Act Jurisdiction Following the U.S. Supreme Court's Decision in Rapanos v. United States & Carabell v. United States (pdf)
- Questions and Answers Regarding the Revised Rapanos & Carabell Guidance (pdf)
- June 2007 Legal Memorandum (pdf)
- June 2007 Memorandum of Agreement regarding Coordination on Jurisdictional Determinations under Clean Water Act Section 404 in Light of the SWANCC and Rapanos Supreme Court Decisions (pdf)
- Appendix D: Legal Definition of Traditional Navigable Waters (note: this document is now entitled "Waters That Qualify as ‘Traditional Navigable Waters’ Under Section (a)(1) of the Agencies’ Regulations" ("TNW Guidance") and the TNW Guidance continues to be utilized by the agencies under current implementation).