Waters of the U.S.

 

Regulatory Guidance Letter (RGL) 16-01

Purpose: Approved jurisdictional determinations (AJDs) and preliminary JDs (PJDs) are tools used by the U.S. Army Corps of Engineers (Corps) to help implement Section 404 of the Clean Water Act (CWA) and Sections 9 and 10 of the River and Harbors Act of 1899 (RHA). Both types of JDs specify what geographic areas will be treated as subject to regulation by the Corps under one or both statutes.

    Public Notice for RGL 16-01

    Questions and Answers for RGL 16-01

    Quick Reference Chart for RGL 16-01

    Request for Corps Jurisdictional Determination (JD) Form

Clean Water Act regulatory programs address “navigable waters,” defined in the statute as “the waters of the United States (WOTUS), including the territorial seas.”  However, the Clean Water Act does not define WOTUS; as Congress left further clarification to the agencies. As a result, the Environmental Protection Agency (EPA) and the Department of the Army (Army) have defined WOTUS by regulation since the 1970s. 

Navigable waters of the United States

Navigable waters of the U.S. (definition found at 33 CFR Part 329.4) are those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. A determination of navigability, once made, applies laterally over the entire surface of the waterbody, and is not extinguished by later actions or events which impede or destroy navigable capacity. The several factors which must be examined when making a determination whether a waterbody is a navigable water of the U.S. are listed below. Generally, the following conditions must be satisfied:

    1. Past, present, or potential presence of interstate or foreign commerce;
    2. Physical capabilities for use by commerce as in paragraph (a) of this section; and
    3. Defined geographic limits of the waterbody.

WOTUS Rule Status and Guidance:

In accordance with a September 2, 2021 directive from the Acting Assistant Secretary of the Army for Civil Works, the Corps has resumed conducting  AJDs nationwide, consistent with the pre-2015 WOTUS regulatory regime. Implementation materials for the pre-2015 WOTUS regulatory regime are available on the HQ Jurisdiction page, at https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/juris_info/.   On that page, you can find links to pre-2015 implementation materials, including the following:

  • The 1986 WOTUS Definition (33 CFR Part 328)
  • The 15 January 2003 SWANCC Guidance
  • The 2 December 2008 Rapanos Guidance
  • The 5 June 2007 Army & EPA Joint Memo for Coordinating on SWANCC/Rapanos JDs
  • The 28 December 2008 Corps Memo for Coordinating SWANCC/Rapanos JDs
  • A link to the U.S. Army Corps of Engineers Jurisdictional Determination (JD) Form Instructional Guidebook is also available on this page, via the link named, “CWA Guidance to Implement the U.S. Supreme Court Decision for the Rapanos and Carabell Cases.” The direct link to the Rapanos JD Guidebook is: https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/Related-Resources/CWA-Guidance/.

More information regarding this change and the pre-2015 regulatory regime is available at the following link: https://www.epa.gov/wotus/current-implementation-waters-united-states.

Jurisdictional Determination Information

To request a JD, contact your area Regulatory office.

Additional resources: