It certainly could have been in a proposed revision of the Clean Water Act of 1972. Luckily, that never came to pass.
The origin of the attempted new, broad navigable waters definition was a brilliant win-win strategy by the Obama administration. They came up with it to look like they were handing a gift to environmental lawyers - there was no body of water they wouldn't be able to shake down farmers and landowners over - while punting the final ruling to his successor, where they knew it would be revoked.
If it did survive a new EPA leader, and then failed in court, Democrats got to say they tried, and if it succeeded...well, that was never going to happen.
Every scientist at EPA knew it was ridiculous but Gina McCarthy was auditioning for her job running NRDC (she got it) so she was on board for anything trial lawyers wanted. The Army Corps of Engineers and Department of Defense knew it was ridiculous. And EPA pulled the plug on it the moment McCarthy cleared out her office. Now, there is a real definition of a navigable water of the United States, created by people who know what they are talking about.
So those same trial lawyers are going for Plan B in the win-win strategy; suing over harms to the environment they claim might happen because a new definition that never went into effect did not go into effect.
It's as ridiculous as it sounds, which is why every time I hear a young person wants to become an environmental lawyer, I lament how jaded they will become about environmentalism once they discover what it's really about.
What will be fun is seeing trial lawyers at Southern Environmental Law Center argue that the Clean Water Act was killing the environment and that the Obama administration was allowing it to happen for 8 years. Obviously they know they can't win, they just want a settlement and for the government to cover "court costs" for their 80 attorneys. Those vacation homes won't pay for themselves, after all.
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