On the campaign trail, President Trump promised to get rid of regulations, especially those designed to protect the environment. One of those regulations has to do with water. In fact very small bodies of water. It’s often referred to as the Waters of the U.S. Rule (WOTUS), or the clean water rule, and it’s the Obama administration’s attempt to define which isolated wetlands, or intermittent streams, are regulated under the Clean Water Act, passed in 1972.

The Trump administration is expected to announce this week a reversal of the rule, which was challenged in court soon after it was enacted in 2015 and has since been blocked from enforcement.

When Congress passed the Clean Water Act 25 years ago, it defined waters that would need some protection from pollution as “navigable.” For most of us that means big enough to float a boat. But when it comes to pollution sources, the need to provide clean water extends upstream of large river systems.

“Everyone agrees it doesn’t strictly mean navigable anymore,” says Owen McDonough, with the National Association of Home Builders – one of the industry groups that opposes WOTUS. “We’re not talking about, for instance, things like the Susquehanna River, or Chesapeake Bay. But as you get farther and farther upstream, into headwaters of streams, that’s been a pretty difficult line to draw.”

McDonough says the gray area included intermittent or ephemeral streams, those that may not flow unless there’s a heavy rain, or isolated wetlands, or ponds. Those areas that are sometimes land, sometimes water.

Over the years, Congress tried and failed to clarify the rule. Past administrations tried and failed as well. And the courts seemed to add to the confusion over what among these tiny waterways deserved protection from pollution discharge and run-off, and what didn’t.

In 2015, Obama Administration tried once and for all to define exactly what would be regulated under the federal Clean Water Act. After several years of research, including analysis of 1,200 peer-reviewed studies. the EPA defined a tributary as having a “bed, banks and ordinary high water mark,” which flowed downstream. It defined “adjacent wetlands and waters” as those “within a minimum of 100 feet and within the 100-year floodplain to a maximum of 1,500 feet of the ordinary high water mark” to the regulated tributaries or waterways.

And it included protection for isolated wetlands, like Prairie potholes out west, coastal prairie wetlands in Texas and what’s known locally as Delmarva bays. These are isolated, small wet areas fed by groundwater and seasonal rain. There are more than one thousand of these wetlands in Delaware, where they serve as nurseries for frogs and salamanders.

“They’re really unique and contain rare plant species,” says Mark Biddle, an environmental scientist with the Delaware Department of Natural Resources and Environmental Control. Biddle says Delaware itself doesn’t regulate non-tidal wetlands, so without the federal clean water rule, the Delmarva bays would not be protected from pollution discharges.

Industry has long pushed for clarity on these waters. In the absence of clear definitions, it was up to different regional offices of the Army Corps of Engineers to decide what required a permit and what didn’t. But when the EPA announced the rule in 2015 it garnered criticism from the oil and gas industry, builders, and farmers who think it goes too far.

The Farm Bureau began what it called the “Ditch the Rule” campaign, criticizing the regulation as causing even more confusion for farmers who feared they would need a permit to discharge into every ditch or puddle on their farm.

Don Parrish with the American Farm Bureau Federation says the EPA did a bad job listening to their concerns.

“I think as much as anything the administrator really belittled a lot of farmers concerns, the administrator called some of our concerns silly and ludicrous,” he said.

Parrish says the threats to farmers are very real, because not getting a permit carries heavy fines or even jail time. He says the way the rule was written, it made it very difficult for farmers and ranchers to know if they would be breaking the law.

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