Biden EPA Pulls Plug on Trump-Era Water Rule

The latest bend in a decadeslong battle has the federal government working to restore protections undone by the Trump administration for America’s waterways and wetlands.

(Image courtesy of Tennessee Department of Environment & Conservation via Courthouse News)

WASHINGTON (CN) — The Biden administration announced plans Wednesday to reverse a Trump-era rule that cut back on the number of waterways and wetlands under federal protection and left tens of thousands of miles of waterways vulnerable to pollution and development. 

Though the Obama administration expanded federal authority to protect wetlands and waterways from development, former President Donald Trump’s Environmental Protection Agency reversed course last year in a boon to developers, landowners and oil drillers that faced onerous permitting requirements under the Clean Water Rule of 2015.

At the time, even experts inside the EPA cautioned that the Trump rule was inconsistent with the text of the Clean Water Act, contradicted established science and could permanently destroy waterways that Americans rely on for drinking water. 

President Joe Biden ordered the EPA and the Army to review of Trump’s modification, called the Navigable Waters Protection Rule, his first week in office. Their assessment notes that Trump’s change left them unable to regulate nearly any of more than 1,500 streams assessed in New Mexico and Arizona that are now considered outside of jurisdiction. The agencies also found that 333 projects that would have required federal permits no longer did under the rule. 

“After reviewing the Navigable Waters Protection Rule as directed by President Biden, the EPA and Department of the Army have determined that this rule is leading to significant environmental degradation,” the Biden-appointed EPA Administrator Michael Regan said in a statement Wednesday. 

Acting Assistant Secretary of the Army for Civil Works Jaime A. Pinkham backs rescission of Trump’s changes. “The Navigable Waters Protection Rule has resulted in a 25 percentage point reduction in determinations of waters that would otherwise be afforded protection,” Pinkham said in a statement. “Communities deserve to have our nation’s waters protected.”

Rulemaking is a delicate matter, however, and environmentalists have balked that Trump’s rule will remain in effect while the process is underway.

“We are urging the EPA to swiftly extend full clean Water Act protections to all the nation’s waters, as they are urgently needed to stop destruction from industry polluters caused by Trump’s Dirty Water Rule,” Julian Gonzalez, a water-policy lobbyist at Earthjustice, in a statement. “Critical wetlands, rivers and streams are being destroyed from coast to coast at a rapid rate with the U.S. Army Corp’s aggressive implementation of the Trump rule.”

After striking down the Trump rule and restoring the 2015 protections, the two agencies will also revise the definition of “Waters of the United States” — a source of debate ever since the Clean Water Act was passed in 1972 — and craft a new set of water protections with input from tribes, states, local governments, agricultural communities, environmental groups and others stakeholders.  

Not all are happy with the proposed change, however, as farm industry forces credit Trump’s Navigable Waters Protection Rule with bringing clarity and certainty to clean water efforts.

“This is an important moment for Administrator Regan and will be pivotal to his ability to earn the trust of farmers on this and other administration priorities,” Zippy Duvall, president of the American Farm Bureau Federation, said in a statement. “He must keep his word to recognize the efforts of agriculture and not return to flawed, overly complicated and excessive regulations.”

In his statement, Regan said that he’s committed to crafting a definition that’s durable, based on Supreme Court precedent and draws from lessons learned from previous regulations. 

Any rule finalized by the Biden administration will likely face a slew of lawsuits, continuing a decadeslong legal battle over water protections that seems unlikely to end in compromise.

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