The Biden administration will seek to expand the scope of waters covered by federal protections beyond the Trump administration definition, again throwing water pollution mandates into limbo.
“The EPA and Department of the Army have determined that this rule is leading to significant environmental degradation,” Environmental Protection Agency Administrator Michael Regan said in a statement.
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“We are committed to establishing a durable definition of ‘waters of the United States’ based on Supreme Court precedent and drawing from the lessons learned from the current and previous regulations, as well as input from a wide array of stakeholders,” he added.
Which waters are covered by federal protections has been a point of regulatory tension for years, following the Obama administration’s Waters of the U.S., or WOTUS, rule. Republican politicians and industry groups have long complained the Obama rule is a prime example of regulatory overreach.
The Trump administration’s rewrite, known as the Navigable Waters Protection rule, outlined four types of waters that are covered by federal protections: traditional navigable waters, such as seas and rivers; streams that flow into traditional navigable waters; wetlands right next to covered waters; and certain lakes, ponds, and impoundments.
That narrower definition excluded waters that were covered under the Obama-era rule, including wetlands connected to covered waters through groundwater, many ditches, and ephemeral streams, or streams that flow with rainwater.
The Biden EPA hasn’t said yet how broadly it will define the scope of federally covered waters. Instead, it is filing a legal motion Wednesday asking a federal district court to send the Trump administration’s rule back to the agency for revision. While the EPA settles on a new definition for “waters of the U.S.,” it will restore protections in place prior to the Obama administration’s rule, the agency said.
Regan and his team face a tricky task, however, in crafting a long-lasting regulation that appeases every constituency.
“We are evaluating the path forward because we believe that we’ve got some lessons learned from previous actions,” including both the Obama and Trump administration rules, Regan told Sen. Lisa Murkowski, an Alaska Republican, during a hearing Wednesday before the Senate appropriations panel overseeing the EPA’s budget. Murkowski had expressed concerns any revisions to the Trump administration’s action would lead to regulatory overreach.
Regan added he will engage with other agencies, including the Agriculture Department and the Army Corps of Engineers, as well as the agriculture sector, affected regions, and Congress, on “how do we have a long-term, durable solution and not continue to have the ping-ponging back and forth?”
Nonetheless, Biden’s team is agreeing with environmentalists and Democrats that the Trump administration’s action vastly limited the amount of waters covered by federal protections. The EPA and Army Corps found nearly all of the more than 1,500 streams they assessed in dry states such as New Mexico and Arizona no longer to be covered.
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“I just think this rule was horribly written, and I would urge you to revisit it as soon as possible,” Sen. Martin Heinrich, a New Mexico Democrat, told Regan during the budget hearing. He added New Mexico had relied on federal protections for its waters and didn’t have the backstop of state regulations.
The agencies also found 333 projects that would have previously required permitting under the Clean Water Act that were excluded from those obligations due to the Trump administration’s narrower definition of covered waters.
