Biden administration drafts new rules to protect streams and wetlands | Water

The Biden administration on Friday finalized regulations to protect hundreds of thousands of streams, wetlands and other waterways, repealing a Trump-era rule federal courts threw out and environmentalists said left waterways vulnerable to pollution.

The rule defines which “waters of the United States” are protected by the Clean Water Act. For decades, the term has been a flashpoint between environmental groups that want to broaden limits on pollution and farmers, builders and industry groups that say extending regulations too far is onerous for business.

The Environmental Protection Agency (EPA) and the Department of the Army said the reworked rule was based on definitions in place before 2015. Federal officials said they wrote a “durable definition” of waterways to reduce uncertainty.

In recent years, however, there has been much uncertainty. After the Obama administration sought to expand federal protections the Trump administration rolled them back as part of its unwinding of hundreds of environmental and public health regulations. A federal judge rejected that effort. A separate case is currently being considered by the supreme court that could yet upend the final rule.

“We have put forward a rule that’s clear, it’s durable, and it balances that protecting of our water resources with the needs of all water users, whether it’s farmers, ranchers, industry, watershed organizations,” the EPA assistant administrator for water, Radhika Fox, told the Associated Press.

The new rule includes updates to reflect court opinions, scientific understanding and decades of experience, Fox said. The final rule will modestly increase protections for some streams, wetlands, lakes and ponds.

The Trump rule, finalized in 2020, was long sought by builders, oil and gas developers, farmers and others who complained about federal overreach they said stretched into gullies, creeks and ravines on farmland and other private property.

Environmental groups and public health advocates countered that the Trump rule allowed businesses to dump pollutants and fill in some wetlands, threatening public water supplies and harming wildlife and habitat.

“Today, the Biden administration restored needed clean water protections so that our nation’s waters are guarded against pollution for fishing, swimming and as sources of drinking water,” said Kelly Moser, senior attorney for the Southern Environmental Law Center’s Clean Water Defense Initiative.

Jon Devine, director of federal water policy for the Natural Resources Defense Council, called repealing the Trump-era rule a “smart move … at a time when we’re seeing unprecedented attacks on federal clean water protections by polluters and their allies”.

The Republican senator Shelley Moore Capito, from West Virginia, called the rule “regulatory overreach” that would “unfairly burden America’s farmers, ranchers, miners, infrastructure builders, and landowners”.

Jerry Konter, chairman of the National Association of Home Builders, said the new rule made it unclear if the federal government will regulate water in places such as roadside ditches and isolated ponds.

A 2021 review by the Biden administration found that the Trump rule allowed more than 300 projects to proceed without the federal permits required under the Obama rule, and that the Trump rule significantly curtailed clean water protections in states such as New Mexico and Arizona.

In August 2021, a federal judge threw out the Trump rule and put back in place a 1986 standard that was broader in scope than the Trump rule but narrower than Obama’s. The US district court judge, Rosemary Marquez in Arizona, an Obama appointee, said the Trump EPA had ignored its own findings that small waterways can affect the wellbeing of the larger waterways they flow into.

The supreme court is considering arguments from an Idaho couple in a business-backed push to curtail the Clean Water Act. Chantell and Michael Sackett wanted to build a home near a lake but the EPA stopped work in 2007, finding wetlands on their property were federally regulated. The agency said the Sacketts needed a permit.

The case was heard in October and tests part of the rule the Biden administration carried into its finalized version. Charles Yates, attorney for the libertarian group Pacific Legal Foundation, said the new Biden rule shows the importance of the supreme court case.

“Absent definitive guidance from the supreme court, a lawful, workable and durable definition of ‘navigable waters’ will remain elusive,” Yates said.

The Biden rule applies federal protections to wetlands, tributaries and other waters that have a significant connection to navigable waters or if wetlands are “relatively permanent”.

Fox said the rule was not written to stop development or prevent farming.

“It is about making sure we have development happening, that we’re growing food and fuel for our country but doing it in a way that also protects our nation’s water,” she said.

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