It's Deja Vu All Over Again With Storm Over Waters Of U.S. Rule

NEXT year will mark the 50th anniversary of the Clean Water Act, one of the nation's bedrock environmental laws. Chances are we will be no closer to resolving its jurisdictional scope. Practitioners involved in the use and management of natural resources and the compliance issues they raise will want to pay close attention, as the situation is turbulent at best.

In the early 1980s, EPA and the Army Corps adopted a definition of "waters of the United States" — found in the text of the statute but not defined further — that included a broad swath of non-navigable tributaries, adjacent wetlands, and other waters. That definition lasted nearly four decades, although it experienced rough waters in the Supreme Court. The government's approach to CWA jurisdiction was upheld in Riverside Bayview (1985), trimmed back in Solid Waste Agency of Northern Cook County (2001), and thanks to a splintered 4-1-4 decision rendered topsy-turvy in Rapanos (2006).