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Federal Regulations
Pre-2015 Regulations
National Pollutant Discharge Elimination System, 38 FR 13528 (May 22, 1973) (the U.S. EPA implemented the NPDES permit program and introduced the first definition of Waters of the United States under the Clean Water Act).
Permits for Activities in Navigable Waters or Ocean Waters, 39 FR 12115 (April 3, 1974) (the U.S. Army Corps of Engineers implemented Section 404 of the Clean Water Act).
Navigable Waters, Discharge of Dredged or Fill Material, 40 FR 41291 (September 5, 1975) (the U.S. EPA provided guidance for the evaluation of all proposed discharges of dredged or fill material into the navigable waters under Section 404 of the Clean Water Act).
Regulatory Programs of the Corps of Engineers; Final Rule, 42 FR 37122 (July 19, 1977) (the U.S Army Corps of Engineers updated the Section 404 program to enhance clarity on various terms and facilitate the issuance of nationwide permits. Furthermore, it revised the definition of Waters of the United States).
National Pollutant Discharge Elimination System; Revisions of Regulations; Final Rule, 44 FR 32854 (August 13, 1979) (the U.S. EPA initiated a program revision to address significant coverage gaps, enhance clarity, and implement regulatory changes required by the 1977 amendments to the Clean Water Act).
Consolidated Permit Regulations; Final Rule, 45 FR 33290 (May 19, 1980) (the U.S. EPA implemented consolidated permit program requirements for multiple EPA programs, including NPDES and Section 404, and redefined the term Waters of the United States to ensure comprehensive coverage).
Regulatory Programs of the Corps of Engineers; Final Rule, 51 FR 41206 (November 13, 1986) (the Corps adopted EPA’s definition of Waters of the United States).
Clean Water Act Regulatory Programs; Final Rule, 58 FR 45037 (August 25, 1993) (the U.S. EPA and the Corps implemented modifications to the definition of “discharge of dredged material and revised the definition of Waters of the United States to exclude prior converted cropland).
Obama-era Administration Regulations
Definition of “Waters of the United States” Under the Clean Water Act, Proposed Rule, 79 FR 22187 (April 21, 2014)
Clean Water Rule: Definition of “Waters of the United States,” Final Rule, 80 FR 37053 (June 29, 2015)
Factsheets:
Clean Water Rule Summary Factsheet
Clean Water Rule Agriculture Factsheet
Clean Water Rule Business Factsheet
Clean Water Rule Communities Factsheet
Clean Water Rule Development Factsheet
Clean Water Rule Local Government Factsheet
Clean Water Rule Recreation Factsheet
Clean Water Rule Utilities Factsheet
Trump-era Administration Regulations
On February 28, 2017, President Donald Trump signed Executive Order 13778, titled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”
Intention to Review and Rescind or Revise the Clean Water Rule; Notice of Intent, 82 FR 12532 (March 6, 2017)
Definition of “Waters of the United States”—Recodification of Pre-Existing Rules; Final Rule, 82 FR 34899 (July 27, 2017)
Definition of “Waters of the United States”—Addition of an Applicability Date to 2015 Clean Water Rule; Proposed Rule, 82 FR 55542 (November 22, 2017)
Definition of “Waters of the United States”—Addition of an Applicability Date to 2015 Clean Water Rule; Final Rule, 83 FR 5200 (February 6, 2018)
Revised Definition of “Waters of the United States;” Proposed Rule, 84 FR 4154 (February 14, 2019)
Definition of “Waters of the United States”—Recodification of Pre-Existing Rules; Final Rule, 84 FR 56626 (October 22, 2019)
The Navigable Waters Protection Rule: Definition of “Waters of the United States;” Final Rule, 85 FR 22250 (April 21, 2020)
Clean Water Act Section 401 Certification Rule; Final Rule, 85 FR 42210 (July 13, 2020)
On October 13, 2020, President Donald Trump signed Executive Order 13956, titled “Modernizing America’s Water Resource Management and Water Infrastructure.”
Factsheets:
Overview of the Navigable Waters Protection Rule – Fact Sheet
Mapping and the Navigable Waters Protection Rule – Fact Sheet
Implementing the Navigable Waters Protection Rule – Fact Sheet
Rural America and the Navigable Waters Protection Rule – Fact Sheet
“Typical Year” and the Navigable Waters Protection Rule – Fact Sheet
Biden-era Administration Regulations
On January 20, 2021, President Joe Biden signed Executive Order 13990, titled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.”
Revised Definition of “Waters of the United States;” Proposed Rule, 86 FR 69372 (December 7, 2021)
Clean Water Act Section 401 Water Quality Certification Improvement Rule; Proposed Rule, 87 FR 35318 (June 9, 2022)
Revised Definition of “Waters of the United States;” Final Rule, 88 FR 3004 (January 18, 2023) (for more information about the content of the final rule, refer to our Ag Law in the Spotlight – “Waters of the United States,” an Overview of the New Rule).
Revised Definition of “Waters of the United States;” Conforming; Final Rule, 88 FR 61964 (September 8, 2023)
Factsheets:
Final Rule: Revised Definition of “Waters of the United States” Fact Sheet (December 2022)
Fact Sheet for the Final Rule: Amendments to the Revised Definition of “Waters of the United States” (August 2023)
Current Regulatory Definition
“Waters of the United States means:
(1) Waters which are:
(i) 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;
(ii) The territorial seas; or
(iii) Interstate waters;
(2) Impoundments of waters otherwise defined as waters of the United States under this definition, other than impoundments of waters identified under paragraph (a)(5) of this section;
(3) Tributaries of waters identified in paragraph (a)(1) or (2) of this section that are relatively permanent, standing or continuously flowing bodies of waters;
(4) Wetlands adjacent to the following waters:
(i) Waters identified in paragraph (a)(1) of this section; or
(ii) Relatively permanent, standing or continuously flowing bodies of water identified in paragraph (a)(2) or (a)(3) of this section and with a continuous surface connection to those waters;
(5) Intrastate lakes and ponds, streams, or wetlands not identified in paragraphs (a)(1) through (4) of this section that are relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to the waters identified in paragraph (a)(1) or (a)(3) of this section.
Eight exclusions from the definition of ‘waters of the United States’ are codified at paragraph (b), and key terms are defined at paragraph (c). ‘Adjacent’ is defined at (c)(2) as ‘having a continuous surface connection’.”
Source: U.S. EPA website, Current Implementation of Waters of the United States
