The rule, as explained by US EPA, protects navigable waterways and their tributaries that are, or show signs of, flowing water such as a bed, bank, or high water mark, and headwaters that have connection to downstream water. The rule also protects waters that are next to rivers and lakes and their tributaries and protects the nation's regional water features when they impact downstream waters. In addition, the rule limits protection to ditches that are constructed out of streams or function like streams and can carry pollution downstream, and maintains the status of waters within municipal separate storm sewer systems.
The rule excludes manmade bodies of water, prior converted cropland, and ditches with ephemeral flow or do not flow, either directly or through another water, into a waters of the United States. Artificially irrigated areas, constructed lakes and ponds, reflecting pools, groundwater, including groundwater drained through subsurface drainage systems, and stormwater control features constructed to convey, treat, or store stormwater are also excluded.
There have been many challenges to the rule since it was published in 2015. Opponents of the rule, which include the U.S Chamber of Commerce, manufacturers, farmers, real estate developers, and golf course owners, among others, have stated that the rule is over reaching by defining ditches and intermittent streams as “waters of the U.S.” and stated that the rule would cause undue burden on businesses and industry. The main complaint is that the rule would require property owners to permit every ditch or puddle on their land, and significantly hinder economic development.
In his executive order, President Trump asked Scott Pruitt to consider the late justice Scalia’s opinion issued in 2006 on the subject, which provided protection to wetlands only if they had a continuous connection to navigable waterways and extended protection only to permanent streams.
The rule, however, cannot be repealed through executive order. It will have to go through the federal rule making process to replace it with a proposed rule. The rule has been, and is currently, on hold after a stay issued on October 9, 2015, by the 6th U.S. Circuit Court of Appeals.
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