Pre-2015 Regulatory Regime

On this page:

The final "Revised Definition of 'Waters of the United States'" rule was published in the Federal Register on January 18, 2023, and the rule 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 January 2023 Rule, as amended by the conforming rule, is not currently operative in certain states 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. Read more about the final conforming rule. 

About the Pre-2015 Regulatory Regime

The “pre-2015 regulatory regime” refers to the agencies’ pre-2015 definition of “waters of the United States,” implemented consistent with relevant case law and longstanding practice, as informed by applicable guidance, training, and experience. Where the January 2023 Rule, as amended, is not currently operative, the agencies are interpreting "waters of the United States" consistent with the pre-2015 regulatory regime until further notice. Additionally, the agencies are interpreting the phrase “waters of the United States” consistent with the Supreme Court’s decision in Sackett.

Pre-2015 Regulatory Definition of "Waters of the United States"

The pre-2015 regulations are commonly referred to as the 1986/1988 regulations, but the agencies note that the 1986/1988 regulations have largely been in place since 1977 and were also amended in 1993 to add an exclusion for prior converted cropland. The text of EPA’s pre-2015 definition of “waters of the United States at 40 CFR 230.3(s) is quoted below.

40 CFR 230.3(s) The term waters of the United States means:

  1. All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
  2. All interstate waters including interstate wetlands;
  3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:
    1. Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
    2. From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
    3. Which are used or could be used for industrial purposes by industries in interstate commerce;
  4. All impoundments of waters otherwise defined as waters of the United States under this definition;
  5. Tributaries of waters identified in paragraphs (s)(1) through (4) of this section;
  6. The territorial sea;
  7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (s)(1) through (6) of this section; waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States.

Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA.

Select Documents Used to Implement the Pre-2015 Definition of "Waters of the United States"

The agencies utilized the materials listed below in implementing the pre-2015 regulatory regime. In light of litigation, the agencies are interpreting "waters of the United States" consistent with the pre-2015 regulatory regime in certain states until further notice. Additionally, and as explained above, the agencies will interpret the phrase “waters of the United States” consistent with the Supreme Court’s decision in Sackett. Thus, certain aspects of the documents listed below may no longer be in effect. Please visit the Rule Status page for additional information about the status of the January 2023 Rule, as amended, and litigation. Read documents used to implement the January 2023 Rule, as amended.

Approved jurisdictional determinations (JDs) are case-specific determinations based on the record, and factual questions or Sackett concerns may be raised in the context of a particular approved JD. For each of the regulatory regimes (the January 2023 Rule, as amended, and the pre-2015 regime) under which the Corps is issuing approved JDs, EPA and the Corps (“the agencies”) signed and posted a joint coordination memorandum that established a process by which the agencies will coordinate on Clean Water Act geographic jurisdictional matters to ensure accurate and consistent implementation of the operative regime (see web links below). For draft approved JDs that are elevated to the Headquarters level for review, a memorandum may be issued that provides policy guidance to the respective EPA regional and Corps district offices. The agencies are posting those memoranda on the web to ensure transparency and accessibility to the public. Memoranda providing case-specific policy guidance for draft approved JDs completed under the pre-2015 regulatory regime will be posted on this web page below. Read memoranda providing case-specific policy guidance for draft approved JDs completed under the January 2023 Rule, as amended.

The Clean Water Act and EPA and Corps regulations, interpreted consistent with the Sackett decision, contain legally binding requirements. The guidance documents and memoranda listed below do not substitute for those provisions or regulations, nor are they regulations themselves. Thus, the guidance documents and memoranda do not impose legally binding requirements on EPA, the Corps, Tribes, States, or the regulated community, and may not apply to a particular situation based upon the circumstances.

Coordination Memorandum

  • September 2023 Joint Coordination Memorandum to the Field Between the U.S. Department of the Army, U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) on the Pre-2015 Regulatory Regime: The purpose of this memo is to establish a process by which the Corps and EPA will coordinate on Clean Water Act geographic jurisdictional matters to ensure accurate and consistent implementation of the pre-2015 regulatory regime, where that regulatory regime is operative.

Rapanos v. United States & Carabell v. United States

In 2007 and again in 2008, the agencies developed guidance for implementing the above definition of "waters of the United States" under the Clean Water Act following the Rapanos v. United States, and Carabell v. United States Supreme Court decision.

Solid Waste Agency of Northern Cook County (SWANCC) v. United States

In 2001 and again in 2003, the agencies developed guidance to address the above definition of "waters of the United States" under the Clean Water Act following the SWANCC Supreme Court decision.

  • January 2003 Legal Memorandum discussing the scope of Clean Water Act jurisdiction in light of the SWANCC ruling and related court decisions.
  • January 2001 Legal Memorandum describing which aspects of the regulatory definition of "waters of the United States" are and are not affected by SWANCC. (This guidance was superseded by the 2003 guidance.)

Headquarters Field Memos Implementing the Pre-2015 Regulatory Regime Consistent with Sackett

Waters of the United States

Contact Us about Waters of the United States
Contact Us to ask a question, provide feedback, or report a problem.
Last updated on November 22, 2024