New Haven Register (Sunday) (New Haven, CT)
EPA reverses Trump, expands protections for U.S. waterways
The Biden administration on Friday imposed a rule expanding the definition of waterways that the U.S. Environmental Protection Agency has authority to regulate, a move that reverses a Trump-era change and seeks to overcome nearly a decade of challenges to EPA powers, including a pending Supreme Court case.
The EPA said its rule strikes a balance it hoped would protect waterways as well as commerce, returning its Waters of the United States regulatory framework to something resembling its state before it became a focus of political debate in 2015. That year, the Obama administration significantly and controversially widened the scope of the Clean Water Act to cover even ephemeral streams and ponds; Trump dramatically weakened EPA’s water pollution authority with a 2019 rule of his own.
In broadening EPA’s powers once again, Administrator Michael Regan said the agency aimed “to deliver a durable definition of WOTUS that safeguards our nation’s waters, strengthens economic opportunity, and protects people’s health while providing greater certainty for farmers, ranchers, and landowners.”
Environmentalists say the rule is central to efforts to restore the health of impaired waterways and fragile wildlife habitats because it gives federal and state governments powers to limit the flow of pollutants, including livestock waste, construction runoff and industrial effluent. The regulation determines how broadly the government can enforce the Clean Water Act, the landmark 1972 law credited with gradual, though sometimes inconsistent, improvement to the health of polluted and degraded rivers and lakes.
But the rule has been a flash point because advocates for industry and property rights say it is overly costly and impractical when applied to wetlands that can be difficult to define or streams that run only for part of the year.
Friday’s announcement did not quell criticisms, with the U.S. Chamber of Commerce suggesting the Biden rule would only add to regulatory uncertainty and unpredictability it said could hinder the planning and construction of major government-funded infrastructure projects.
And although the Biden rule is less expansive than Obama’s, Republicans quickly attacked it as onerous.
“The rule announced today is the latest round of regulatory overreach regarding what waters are subject to regulation under the Clean Water Act, and will unfairly burden America’s farmers, ranchers, miners, infrastructure builders, and landowners,” Sen. Shelley Moore Capito (R-W.Va.) said in a statement.
Jon Devine, director of federal water policy for the Natural Resources Defense Council, meanwhile called the Biden rule “sensible, good-government action.”
The environmental group and others estimated that Trump’s regulatory regime would remove federal protections from roughly half the nation’s wetlands and at least 1.19 million miles of raindependent streams and rivers. Biden’s rule would bring much of those wetlands and waterways back under EPA’s regulatory authority, though it would not go so far as Obama’s 2015 rule.
The Biden administration said it would redefine EPA oversight as covering “traditional navigable waters,” including interstate waterways and upstream water sources that influence the health and quality of those waterways. The definition is based on legal framework established before 2015, with adjustments based on court rulings and newer science, EPA said.
The Department of the Army joined EPA in finalizing the new rule because the Army Corps of Engineers has authority over any actions filling regulated bodies of water with dredge spoils or other materials.
“The rule’s clear and supportable definition of waters of the United States will allow for more efficient and effective implementation and provide the clarity long desired by farmers, industry, environmental organizations, and other stakeholders,” Michael L. Connor, the Army’s assistant secretary for civil works, said in a statement.
The Biden administration’s action comes ahead of an expected Supreme Court ruling that could limit EPA authority.
The Supreme Court heard a case in October concerning a home that Idaho couple Michael and Chantell Sackett planned to build but that EPA said would disturb wetlands. Members of the court’s conservative majority raised concerns about the law’s broad reach over development on private property.
The new Biden rule does not change EPA’s approach toward such cases, in which the agency said its authority applied because the wetlands are next to a large lake. A court ruling that narrows the agency’s power could require some regulatory revisions, but might not otherwise upend Biden’s approach to water pollution, said Kevin Minoli, an attorney at Alston & Bird who served as a career attorney at EPA under four presidents.
The rule could nonetheless invite new challenges. It expands EPA’s power over isolated wetlands and other bodies of water if the agency can argue they serve important functions such as storing floodwaters or providing habitat and food resources, he said. A 2001 Supreme Court ruling said the government could not use the presence of migratory birds to assert that the Clean Water Act applies to isolated bodies of water.
“This rule brings them fully back into play,” Minoli said.