Biden Moves to Restore Water Safeguards

The rule — known as “waters of the United States” — narrowed the types of waterways that qualified for federal protection.

EPA Administrator Michael Regan during a press briefing at the White House, May 12, 2021.
EPA Administrator Michael Regan during a press briefing at the White House, May 12, 2021.
AP Photo/Evan Vucci

WASHINGTON (AP) — The Biden administration began legal action Wednesday to repeal a Trump-era rule that ended federal protections for hundreds of thousands of small streams, wetlands and other waterways, leaving them more vulnerable to pollution from development, industry and farms.

The rule — sometimes referred to as “waters of the United States” or WOTUS — narrowed the types of waterways that qualify for federal protection under the Clean Water Act. It was one of hundreds of rollbacks of environmental and public health regulations under President Donald Trump, who said the rules imposed unnecessary burdens on business.

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

Environmental groups and public health advocates said the rollback approved under Trump has allowed businesses to dump pollutants into unprotected waterways and fill in some wetlands, threatening public water supplies downstream and harming wildlife and habitat. The Trump-era rule resulted in a 25% reduction in the number of streams and wetlands that are afforded federal protection, said Jaime Pinkham, acting assistant Army secretary for civil works.

The water rule has been a point of contention for decades. The Environmental Protection Agency administrator, Michael Regan, has pledged to issue a new rule that protects water quality while not overly burdening small farmers.

President Joe Biden ordered a review of the Trump rule as part of a broader executive action on climate change during his first week in office. Wednesday's legal filing by the Justice Department begins that process as the EPA and Department of the Army formally request repeal of the Trump-era rule.

“Today's action reflects the agencies’ intent to initiate a new rulemaking process that restores the protections in place prior to the 2015 WOTUS implementation, and anticipates developing a new rule'' that defines what waters are considered to be under federal jurisdiction, the EPA said in a statement.

“We are committed to establishing a durable definition of ‘waters of the United States’ based on Supreme Court precedent and drawing from current and previous regulations ... so we can better protect our nation’s waters, foster economic growth and support thriving communities,'' Regan said.

The Army and EPA “will develop a rule that is informed by our technical expertise, is straightforward to implement by our agencies ... and is shaped by the lived experience of local communities,” Pinkham said.

A review conducted by the Biden administration determined that the Trump rule is significantly reducing clean water protections, particularly in arid states such as New Mexico and Arizona, where a large number of streams now lack federal jurisdiction. At least 333 projects that would have required Clean Water Act permits no longer need federal approval, the agencies said.

The Trump-era rule removed protections from several public lakes, including Lake Keowee in South Carolina, a reservoir that provides drinking water for nearly 400,000 people, according to the Southern Environmental Law Center, an advocacy group. The rule also removed Army Corps of Engineers jurisdiction from about 400 acres of wetlands where a titanium mine is planned near Georgia's Okefenokee Swamp, the group said.

The law center and other environmental groups hailed the EPA action and urged officials to move quickly to restore long-standing protections for critical drinking water sources.

"Every day this harmful (Trump-era) rule is in effect, it endangers the waterways our communities depend on. That is unacceptable and must stop now,'' said Madeleine Foote, deputy legislative director for the League of Conservation Voters.

North Dakota Sen. Kevin Cramer, a Republican who hosted Regan during a visit to his state last week, said it was “a shame the Biden administration wants to undo the good work of the Trump administration'' in developing “a workable policy that falls within the confines of the law.''

North Dakota is likely to challenge the Biden rule in court “in the event of overreach,” Cramer said.

Kevin Minoli, a former career lawyer at EPA, said the Biden team faces a similar dilemma to the Obama and Trump administrations. “Now, the question becomes, ‘Can they write a definition that will last beyond their time in office?’” he said.

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