Biden moves to restore clean-water safeguards ended by Trump

Associated Press
EPA Administrator Michael Regan speaks during a press briefing at the White House, Wednesday, May 12, 2021, in Washington. (AP Photo/Evan Vucci)

WASHINGTON (AP) – The Biden administration began legal action last week 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.

Despite Regan's assurances, ag groups weighed in this week, airing their concerns that the announcement would signal a return to the massive overreach of past regulations.

"If the EPA and Corps do move forward on this path, they must avoid the dramatic overreach seen in the 2015 WOTUS rule, which expanded federal jurisdiction over lands that Congress never intended to be covered by the Clean Water Act," the National Council of Farmer Cooperatives said in a statement. 

The group says the 2020 rule reflected the fact that it isn't necessary to make most waters across every state subject to federal jurisdiction to achieve the environmental objectives of the CWA.

"We hope that (Regain) will stand by the commitments he made to a House committee in April when, after acknowledging the flaws in the 2015 rule, he pledged that any path forward on WOTUS would be 'inclusive' and 'forward-leaning'."

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.

American Farm Bureau Federation President Zippy Duvall expressed his disappointment in the EPA's intent to reverse the "environmentally conscious" rule, which finally brought clarity and certainty to clean water efforts.

"Farmers and ranchers care about clean water and preserving the land," Duvall said. "We are deeply concerned that the EPA plans to reverse the Navigable Waters Protections Rule, which puts the future of responsible protections at risk. We expected extensive outreach, but this announcement fails to recognize the concerns of farmers and ranchers."

The definitions in the 2020 rule provided farmers with much-needed certainty on which level of government controls the land that is sometimes wet, specifically land in areas that should not be considered federal waters.

"We saw this in the rule defining waters of the U.S. in 2015; wet spots in fields, tiny isolated wetlands, agricultural drains and mostly dry features on farmland were suddenly defined as regulated waterways," said Laura Campbell, Michigan Farm Bureau Agriculture Ecology Department manager.

Regan says his agency is 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,'' he 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 Southern Environmental 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.

Duvall says the AFBF is calling on the EPA to respect the statute, recognize the burden that overreaching regulation places on farmers and ranchers, and not write the term "navigable" out of te Clean Water Act.

"On this issue, and particularly prior converted croplands and ephemerals, we also urge Secretary Vilsack to ensure that we don't return to the regulatory land grab that was the 2015 WOTUS rule," Duvall said. "Clean water and clarity are paramount, and that is why farmers shouldn't need a team of lawyers and consultants to farm."

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.

Colleen Kottke of the Wisconsin State Farmer contributed to this report.