While the new Rule simplifies several aspects of determining Clean Water Act jurisdiction, it adds a healthy measure of confusion to other aspects. Determining whether a wetland or other water is “neighboring,” possesses a significant nexus to a Traditional Navigable Water, or whether a ditch is a Water of the U.S. is likely to prove highly challenging in many situations. Don’t forget, this new Rule pertains to all regulatory programs under the Clean Water Act, e.g., NPDES, oil spills, water quality standards, etc. Though the EPA and Corps of Engineers are developing numerous fact sheets and guidance documents to explain and clarify portions of the new Rule, I expect that it will them quite some time to publish those fact sheets and that guidance. And it will take even longer for the agencies to actually figure out how to implement the Rule and guidance in a practical fashion. For at the least the next several months, maybe longer, expect this landscape to remain greatly unsettled. If you find yourself in need of assistance, field support, and/or advice, please contact me. I can help.
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