Defining ‘Waters of the United States’: A Mean-Spirited Guide

    August 2015

    Especially in the arid West, where “waters of the United States” are frequently not, well, wet, trying to define jurisdictional waters under the Clean Water Act (the Act) has always been a challenge. Sloppy drafting of the Act in 1972, inconsistent and confusing Supreme Court rulings, and opaque guidance have contributed to years of dysfunction. For many in the regulated community, the biggest frustration is not the need to comply with the Act where it clearly applies, but the time and money it takes to determine if it does. That dysfunction, alas, will not be ended by the release of the final Clean Water Rule (Final Rule) by the US Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps). 

    In an article for the American Bar Association’s Natural Resources & Environment magazine, Squire Patton Boggs Phoenix partner Christopher D.  Thomas writes “it appears to strike no one as odd that, more than forty years after passage of an act regulating water pollution, we are still trying to define ‘water’.” Mr. Thomas summarizes the sequence of events which brought the industry into the current regulatory headache, which criticisms of the rule have some merit, and which can be safely ignored.