The jurisdictional reach of the federal 1972 Clean Water Act, which hinges on the definition of “navigable waters” or the “waters of the United States,” has been the subject of hot debate, consternation and interpretation – with plenty of litigation, regulation, agency interpretative guidance, inter-agency memorandum of agreements, more litigation, new regulations, supplemental agency guidance and memoranda, even injunctions, and so on – for decades.
The last major action in this saga was the Obama administration’s 2015 Clean Water Rule, which broadened the Act’s jurisdiction to water bodies not previously regulated, such as smaller streams and tributaries, dry washes or intermittent streams, and certain ditches or gravel pits. Farmers, especially in the West (where a large majority of surface water flows intermittently), developers, and the mining industry were most affected by the expansion.
One of President Trump’s first actions in office was a February 2017 executive order directing the United States Environmental Protection Agency and the Army Corps of Engineers (the two agencies share regulatory authority under the Act) to rescind and replace the Obama Rule. Today, the two agencies released the proposed replacement rule. As expected, it proposes a significantly more limited definition of “waters of the United States.”
Early estimates are saying that millions of acres of wetlands and thousands of miles of streams will no longer be subject to federal regulation, but there is a long road ahead before the rule becomes law. First, the proposed rule is subject to a 60 day public comment period. Second is the litigation, which is a practically guaranteed – environmental groups have made their opposition clear. And the saga continues…