Legal Memoranda Regarding Solid Waste Agency of Northern Cook County (SWANCC) v. United States
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,” published in the Federal Register and became effective on September 8, 2023. 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 2003 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. However, the agencies are not using the 2003 guidance to implement the January 2023 definition of "waters of the United States," as amended by the conforming rule.
The 2003 joint legal memorandum (68 FR 1991, 1995 (Jan. 15, 2003)) provides clarifying guidance regarding the Supreme Court’s decision in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159 (2001) (‘‘SWANCC’’). It was jointly signed in January 2003 by the General Counsels of EPA and the Department of Army.
The 2001 joint legal memorandum describes which aspects of the regulatory definition of "waters of the United States" are and are not affected by SWANCC. It was jointly signed in January 2001 by the General Counsel of EPA and the Chief Counsel of the Army Corps of Engineers. This guidance was superseded by the 2003 guidance.