The EPA has proposed a new regulation to limit wetland protection. The new regulation would redefine wetlands and other water features under the Clean Water Act and will likely limit protections. This is essentially an end to an Obama-era rule that had expanded the definition of protected waters.

“The new rule would define when a wetland or other water feature qualifies for protection under the Clean Water Act, which protects the nation's 'navigable waters,'” Clark Morrison, a partner at Cox, Castle & Nicholson LLP, tells GlobeSt.com. “The principal legal question is the extent to which a water must be 'navigable' to qualify for protection. For example, we know that seas and major rivers are navigable, but most rivers are fed by small trickles far upstream that are not navigable at all.”

Under the current law, there has been some debate as to what qualifies as a navigable water. “The problem lies in determining the point at which a small flow of water transitions from a non-navigable rivulet into a navigable stream,” says Morrison. “Given that such transitions are gradual in nature, how does the government identify the precise point where jurisdiction over a river begins and ends? Similarly, is a non-navigable wetland protected if it is adjacent to and contributes flow to a navigable river? If so, how much flow is necessary?”