The Waters of The US (WOTUS) rule that the Obama administration had developed in response to two prior directives from the US Supreme Court (in 2000, and 2006) that the Clean Water Act rules were unclear as to segmented wetlands, intermittent ephemeral streams and various lakes and impoundments. The 2015 proposal specifically included the ephemeral streams because of the potential for pollutants to be flushed into waters that downstream agriculture, ecological and potable water supply entities were using. That appeared to address the US Supreme Court’s directives after much public comment. Ranchers, farmers and private property rights groups objected to the revised definition in the 2015 rule changes, specifically in the area from the Mississippi River into the Rocky Mountains.
The current administration suspended the 2015 rule and has proposed its own that removes the season, ephemeral and subsurface definitions. It also removed categories that apply to ditches and impoundments. That makes ranchers, farmers and private property rights groups happy, the has major consequences that were not contemplated. The subsurface flow change has major impacts on places like south Florida where water bodies and groundwater are completely interconnected. Even in north Florida and places with alluvial deposits, streams can disappear then reappear later. Water in canals and stormwater treatment areas, the basis of the Everglades restoration, are exempt. So are seepage canals. While there will be many lawsuits to fight the rule, including a potential consideration by the US Supreme Court, the changes create much uncertainty that had been removed by the 2015 rule change.
Change is not always better. In this case water utilities are likely to see degradation of water supplies, and diversion of supplies that are no longer regulated. Stay tuned