Current Implementation of Waters of the United States


The Environmental Protection Agency and U.S. Army Corps of Engineers are in receipt of the U.S. District Court for the District of Arizona’s August 30, 2021, order vacating and remanding the Navigable Waters Protection Rule in the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency.

In light of this order, the agencies have halted implementation of the Navigable Waters Protection Rule and are interpreting “waters of the United States” consistent with the pre-2015 regulatory regime until further notice.



This means that projects with recently issued No Permit Required (NPR) Letters may want to revisit jurisdiction to ensure compliance.

Lawsuits have already been filed for projects currently under construction where previous permits were sought, and then revised for issuance of a NPR when the WOTUS rule changed. These legal challenges are forcing the agencies to revisit the NPR issued and address 404 under pre-2015 regs.

As for pending projects, as always, development can continue in uplands with safe buffers for existing wetlands. However, if you feel a 404 permit is necessary or require a NPR letter, then the applicant will have to wait to complete wetland impacts to avoid additional risk.

If you are positive you have no 404 issues, then it is status quo – you may continue at your own risk of future compliance challenges if the agency disagrees with the assessment of jurisdiction.