The Federal government has incrementally extended its control over agricultural lands during the past forty years,1 by expanding the definition of "waters of the US" (WOTUS) under the Clean Water Act (CWA) and asserting broad legal jurisdiction over WOTUS-adjacent "wetlands." Such activities have triggered Congressional investigations2 and significant public litigation. They also have facilitated the CWA's growth into a "regulatory hydra" and caused a "reversal of terms [in our unique relationship with government] that is worthy of Alice in Wonderland."3
During this past February, President Trump issued Executive Order 137784 in an initial effort to curtail this government juggernaut which disregards constitutionally protected private property rights in furtherance of wetlands protection. The EO directs the heads of the U.S. Environmental Protection Agency ("EPA") and the Army Corps of Engineers ("the Corps") to review for substantial revision or rescission their jointly issued 2015 CWA regulation which expands the "WOTUS" rule and narrows its "normal farming activities" exemption.5 Presumably, EPA's review of this regulation will be undertaken while the October 9, 2015 federal court-issued stay of its implementation remains in place.6
The Obama administration regulation inter alia treats all "wetlands" adjacent to WOTUS as "jurisdictional waters" for purposes of enforcing CWA's controversial Section 404 (dredge and fill permitting requirements). It does so by dispensing with the traditional case-by-case evaluations used to determine if jurisdiction applies to specific delineated wetlands.7 Although this regulation also states that the longstanding "prior converted cropland" ("PCC") exclusion from WOTUS jurisdiction will be upheld,8 this result is not certain, and can be assured only through active ongoing White House oversight.
