Waters of the United States

What does the latest rule defining “Waters of the United States” mean and why another change? The USEPA and USACE have announced a final rule that is founded upon the pre-2015 definition of “Waters of the U.S.” The agencies chose the familiar pre-2015 definition as a foundation because it has been used in some fashion by every administration for the last 45 years under the Clean Water Act. Changing the rule in response to various court decisions in 2015, 2019, and 2022 has led to much confusion among the regulated communities. The agencies indicate that this new rule restores fundamental protections so that the nation will be brought closer to achieving Congress’ direction in the Clean Water Act that our waters be fishable and swimmable. It is hoped that this new rule will be clear and more robust, not requiring changes to respond to future Court decisions. Only the USACE makes the final decisions on whether any given wetland/Waters is a jurisdictional Waters of the U.S., but Hey and Associates staff can provide our best professional opinion based on the new rule and offer guidance on permitting.

Our major rivers such as the Fox and Des Plaines are considered traditionally navigable waters. They are under federal jurisdiction as are any defined tributaries to those rivers. Any wetlands adjacent to those rivers and tributaries are also jurisdictional. Beyond those wetlands and waters, it comes down to a significant nexus test based on whether a given wetland or water body contributes to the physical, chemical, or biological integrity of downstream waters of the U.S.