June 01, 2015

Defining “Waters of the United States”: A Mean-Spirited Guide

Christopher D. Thomas

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 U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps).

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