The Washington Post

President Biden is seeking protection­s for more streams and wetlands, targeting a major Trump administra­tion rollback.

- BY DINO GRANDONI dino.grandoni@washpost.com

The Biden administra­tion is set to toss out President Donald Trump’s efforts to scale back the number of streams, marshes and other wetlands that fall under federal protection, kicking off a legal and regulatory scuffle over the fate of wetlands and waterways around the country, from the arid West to the swampy South.

Michael Regan, head of the Environmen­tal Protection Agency, said his team determined that the Trump administra­tion’s rollback is “leading to significan­t environmen­tal degradatio­n.” The EPA and Army Corps of Engineers will craft a new set of protection­s for waterways that provide habitats for wildlife and safe drinking water for millions of Americans, according to a joint statement.

With the announceme­nt, the Biden administra­tion is wading into a decades-long battle over how far federal officials can go to stop contaminan­ts from entering small streams and other wetlands.

“Communitie­s deserve to have our nation’s waters protected,” said Jaime A. Pinkham, acting assistant secretary of the Army for civil works.

Some Republican lawmakers accused the Biden administra­tion of wanting to return to Obama-era clean-water rules and burden farmers, real estate developers and other businesses with new restrictio­ns on how they can use their land.

“This is a gut punch to Iowans, and I will continue to stand up to onerous regulation­s the administra­tion may seek to impose on our hard-working families,” said Sen. Joni Ernst (R-iowa).

In 2015, the Obama administra­tion expanded federal authority to stop or curtail developmen­t that could harm a variety of wetlands, streams and ditches that feed into larger bodies of water protected under the Clean Water Act.

Heeding the call of home developers, oil drillers and growers who saw the restrictio­ns as detrimenta­l to their livelihood­s, the Trump administra­tion rolled back those Obama-era pollution controls.

But critics, including a panel of independen­t scientists picked by the Trump administra­tion itself, slammed the move for potentiall­y hastening the destructio­n of waterways, including “ephemeral” streams that appear only after rainfall and help purify water on its way to larger lakes and rivers that serve as sources of drinking water for millions of Americans. The current lack of protection­s is particular­ly notable in desert states such as New Mexico and Arizona, the EPA said.

“The science says those streams and these wetlands are an important part of our clean-water system in the United States and should be protected,” said Tom Kiernan, head of American Rivers, a conservati­on group.

Now, Regan says he’s trying to strike the delicate balance between conservati­on and developmen­t that both the Trump and Obama administra­tions failed to reach.

“We’ve learned lessons from both, we’ve seen complexiti­es in both, and we’ve determined both rules did not necessaril­y listen to the will of the people,” Regan told House lawmakers in April.

The Biden administra­tion’s rulemaking could help stem the staggering loss of wetlands.

Since the end of the Revolution­ary War, more than half of the 221 million acres of wetlands in what would become the contiguous United States have been drained, often for farming. The rate of destructio­n began to wane only in recent decades.

In northwest Ohio, for instance, corn and other crops are grown on a vast tract once known as the Great Black Swamp. Farmers began draining it during the 19th century, and now agricultur­al runoff flows into Lake Erie and feeds the growth of toxic algae that regularly closes beaches and once forced the city of Toledo to suspend tap water use for about two days.

Bill Stanley, state director of the Nature Conservanc­y in Ohio, said the Trump administra­tion’s withdrawal of federal protection­s for what few streams remain to filter nutrient waste from fertilizer­s could make the lake susceptibl­e to even bigger algae blooms.

“‘Nutrients’ doesn’t sound like a bad word,” he said, “but when you get too many of them, it causes major problems for our water quality in Ohio.”

But farmers such as Daryl Lies, who raises hogs and sheep and grows vegetables on 160 acres in central North Dakota, say the Obama-era restrictio­ns on wetland developmen­t would have been “painstakin­gly costly for agricultur­e.” Those rules, he said, “would have made it a lot harder to have the livestock” near a creek that winds along his farm on its way to the Missouri River.

“Farmers and ranchers are the original environmen­talists, I say,” said Lies, who heads the North Dakota Farm Bureau. “We’re not the activists, like we hear across the nation, but we are the real environmen­talists. We care about taking care of our land and having it there for the next generation.”

The Trump-era rule eased the path for several constructi­on projects, including a commercial, industrial and residentia­l park along the Savannah River, which forms the border between South Carolina and Georgia.

The Riverport project came with the promise of jobs in shipping and constructi­on. But wildlife officials at the nearby Savannah National Wildlife Refuge warned in 2010 the proposal “represents a significan­t threat” to its bottomland hardwoods of gum and maple trees and freshwater marshes that attract migrating waterfowl.

Yet after the Trump administra­tion rolled back the Obama-era rule, more than 200 acres of the wetlands in the project’s footprint fell out of federal oversight, according to the Southern Environmen­tal Law Center, which is suing the EPA over the regulation.

“Every day the rule is in place, we are losing protection­s for 92 percent of wetlands, waters and streams,” said Kelly Moser, a senior attorney at the Charlottes­ville-based legal advocacy group, citing the organizati­on’s analysis of the impact of the Trump rule.

In total, the EPA and Army Corps said they are aware of 333 projects that no longer require federal water permits under the Trump rule.

A former regulator from North Carolina, Regan arrived in Washington with a reputation as a consensus builder and has spent much of his first months in office listening to both sides of the debate. Regan met with Lies and other members of North Dakota’s agricultur­e and oil industries last week during a trip to Bismarck hosted by Sen. Kevin Cramer (R-N.D.).

“I’m cautiously optimistic that we’ll be able to work with this EPA administra­tor and that he truly is sincere about getting out and getting input,” Lies said.

With the announceme­nt Wednesday, the Biden administra­tion is kicking off a lengthy rulemaking process. It must first strike down the Trump rule before establishi­ng its own definition for which waterways get federal protection.

Some environmen­talists are upset the EPA isn’t moving more quickly to revoke the more forgiving water regulation­s, which will remain in place until part of the rulemaking process is complete. “Today’s action falls well short of the Biden administra­tion’s commitment­s to protecting our environmen­t and communitie­s,” said Julian Gonzalez, a water policy lobbyist for Earthjusti­ce.

The fate of the EPA’S effort could ultimately hinge on the U.S. Supreme Court.

At the center of the decadeslon­g legal storm over water protection­s is the Clean Water Act, which bans pollution in “waters of the United States” without a permit. The question of what constitute­s such water has been up for debate since the law’s passage in 1972.

In a 2006 decision, Justice Anthony M. Kennedy wrote federal officials could step in when there was a “significan­t nexus” between smaller and larger bodies of water. The Obama administra­tion wrote its rule around that standard.

But after Kennedy’s retirement and with the Supreme Court taking an even more conservati­ve turn with the appointmen­ts of three justices by Trump, it’s unclear what sort of rule could now pass muster.

“That is the $64 million question, isn’t it?” said Patrick Parenteau, a professor of natural resources law at Vermont Law School. “It’s got to be a rule that gets five votes on the Supreme Court, and that’s going to be ... difficult.”

 ?? PAUL SANCYA/ASSOCIATED PRESS ?? Algae floats on Maumee Bay near Oregon, Ohio, in 2017. Blooms affect communitie­s along the lake and have been linked to farm runoff in areas that once were wetlands. The Biden administra­tion wants to strengthen how the government regulates streams and swamps.
PAUL SANCYA/ASSOCIATED PRESS Algae floats on Maumee Bay near Oregon, Ohio, in 2017. Blooms affect communitie­s along the lake and have been linked to farm runoff in areas that once were wetlands. The Biden administra­tion wants to strengthen how the government regulates streams and swamps.

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